Negligence and Especially Capable Defendants: Does the Objective Standard of Care Cut Both Ways?
James Goudkamp, ‘Negligence and Especially Capable Defendants: Does the Objective Standard of Care Cut Both Ways?’ (2004) 12 Tort Law Review pp.111–113.
3 Pages Posted: 22 Mar 2016 Last revised: 20 May 2017
Date Written: 2004
The objective standard of care is probably the most familiar feature of the tort of negligence. The reasonable person, who sets the benchmark for this standard, is a well-known acquaintance of all lawyers. However, notwithstanding the centrality of the objective standard in the negligence equation, some issues remain largely unexplored. One intriguing question that has received little attention is whether the standard exonerates especially capable individuals who met the reasonable person test but who could have performed better. For instance, assume that a patient suffers injury as a result of a bungled medical procedure, and that the surgeon, who is especially gifted, met the standard of the reasonable surgeon, but failed to exercise his or her surgical skills to his or her full potential. Had the surgeon lived up to his or her potential, the injury to the patient would have been avoided. Would a defendant in such a case be released from liability? In other words, does the objective standard permit extraordinarily capable people to ‘live down’ to the level of the reasonable person? This note argues that the despite a dearth of authority, it seems likely that the objective standard of care probably applies to people of substandard and extraordinary ability alike. The note also considers whether this position is satisfactory.
Keywords: tort, negligence, objective standard of care
JEL Classification: K13
Suggested Citation: Suggested Citation