Liable but not Culpable, Part 4: Lexplaining Negligence and the Reasonably Prudent Person

Good morning you incorrigible idiots that seem to think this should be an educational site and welcome to Lawyers & Liquor! I’m your host, the Boozy Barrister.

So we’ve spent a lot of time over the past week or so working on educating you slobbering shitstains on the face of the legal system about the concept of intent,mens rea, the differences between the criminal and civil legal systems, and generally just all this shit that you should already fucking know if you have a license to practice law anywhere but in your mind. Of course, the issue is that a lot of you don’t have a license to practice law, and are, for all intent and purposes, the Muggles of the legal world. While the rest of us stand around shouting shit like “Ex post facto!” and “Res Ipsa!” you motherfuckers just sort of sit there pounding your puds and staring blankly into the sun. So, to those of you who have to make a conscious effort to both walk and inhale at the same time, this Bud’s for you as we move into the last part of our four part series on the concept of “intent” and shit: the negligence standard.

Let’s…let’s just get this shit over with quickly, okay? I want to go back to talking about other shit now.


Do you seriously need to ask me that shit? I mean, I only give you assholes a certain number of questions to ask in these things, and that’s the one you want to open with? “What is negligence?” Jesus-jerking-off-a-polar-bear, you couldn’t go with something a little less unbearably stupid?

Fine. Black’s Law Dictionary, the source of legal definitions for jackasses that want to have important books sitting on their shelves, defines “negligence” as follows:

Negligence, n. 1. The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. 2. A tort grounded in this failure, usually expressed in terms of the following elements: duty, breach of duty, causation, and damages.

Black’s Law Dictionary, 470 2d Pocket Ed. (2001).

Does that explain it to you?


Of course it fucking doesn’t, because the field of negligence is like the entire second semester of Torts in law school. There’s no way you’re going to understand it all from one definition, so why the fuck even ask for the definition of the whole thing? It doesn’t fucking matter!

But it’s a fair enough question, and it does deserve a bit of an answer, so let’s break it down into “so simple a CEO could understand it and then not give a shit.”

When you do something, you have an obligation to do it in a way that doesn’t cause harm to other people. That’s a “duty of care,” and we owe it all the time to the people around us. When we fail to make sure that our actions don’t hurt other people, we have “breached” the duty of care, and we’re negligent. That’s when the person that was hurt because you were popping lead ping pong balls out your hoo-hah into a crowded strip club (those Kegels really paid off!) and one gave them a concussion starts getting flooded with letters from personal injury attorneys. So many fucking letters. Like, I’m digressing a bit here, but get in a fender bender sometime and you could build a paper-mache courthouse, life size, out of the number of fucking letters you get from the personal injury attorneys that want you to retain them

Anyhow, that’s the Moron’s Lexplanation of what negligence is: it’s a failure to do the shit you’re doing in such a way that other people aren’t hurt as a result of that shit.


Then you have some really strange kinks, not that I’m shaming you for them, but maybe you should just stick to jerking off to Full HD XXX videos like the rest of us normal folk…

The honest answer? No, fucking of course not, because there are limitations to how much you’re liable for when you breach the duty of care [we’re saying “duty” a lot today. Just giggle now and get it the fuck over with, okay?].

The main limitation is that the harm that is resulting from your action and your failure to take even the barest fucking moment to make sure you’re not being a dick while doing it has to be reasonably foreseeable in order to actually create a duty of care. That means, in this scenario that you posited, negligence only holds you liable for harms that are within the types of harm that a reasonably prudent person would expect to result from a failure to jerk off in a safe fashion. Like, I don’t know, maybe you’d be liable for negligent infliction of emotional distress if your Grandma came waltzing through the door right as you’re furiously flogging the bishop to an old black-and-white photo of her in that sexy, sexy World War II era uniform or something, because that shit (someone walking in and catching you being just…the worst type of person) would be foreseeable. However, unless you’re using lighter fluid as lube while standing next to your neighbor’s house, the strange set of circumstances that would go from a simple case of “Making Baby Jesus Cry” to “convicted arsonist” probably wasn’t foreseeable.


Yep. And that’s where we have this whole difference here between negligence and the other areas we talked about, because while criminal law is subjective and looks only at what the person actually knows, and intentional torts are mainly objective and looks for the most part at what the defendant should have known the outcome would be, negligence sort of…looks at both in a weird ass way.

The main question in a negligence case is “would this asshole, Arnie the Ejaculating Arsonist, have known that his conduct would lead to the accidental burning down of the house next door?” To answer that question, the jury looks really at two things: what did Arnie the Flame Throwing Jizz Monster actually know about his circumstances, what Arnie should have known about his circumstances, and what a reasonably prudent person would have expected to be the potential harm from the outcome. Because when we set the circumstances for negligence, that’s what we’re really doing: determining what a reasonably prudent person, similarly situated, would have been aware of in the same situation.

So, for instance, say Arnie knows that his tiny tadger is actually a flamethrower thanks to his diet of the finest gasoline and the lighter-piercing attached that’s always one. Everytime anything comes out of Arnie (pun definitely intended), there’s a spurt of flame. We know now that Arnie has actual knowledge, because he’s aware of this fact. Now, say that under the same circumstances, a reasonable person would then know that the curtains are amazingly fucking flammable, because we base that question off of what people generally fucking now, like “tissue paper curtains are amazingly fucking flammable, so don’t shoot your napalm nasties all over them.” So at that point we have the confluence of the two things: Arnie is aware from history and circumstances that his dick shoots literal flames, and reasonable people know curtains are flammable. At that point we can say that Arnie would be aware under the “reasonable person” standard that his actions carry risks and he needs to be fucking careful in doing it.


Only after you show me your STD test results.

Anyhow, you see how that works in negligence, right? Arnie, from a combination of his knowledge and what we can kind of call “common knowledge” imputed to him, should know that his activity is dangerous and has risks he needs to guard against. It doesn’t matter if Arnie is completely unaware of the fact that tissue paper curtains burn, that’s knowledge and expectations we impute to him under the reasonable person standard for his circumstances.

But we don’t end the analysis there. We then have to look to see what the duty of care actually was. See, you don’t have to guard against any harm that could ever possibly result from your activities, that’s completely unreasonable and would leave all of us sitting perfectly still and never doing anything ever again. All you have to guard against is harm that can be reasonably expected to result from your actions.


Honestly? The exact same way we figure out whether Arnie should have known better than to turn his cock and balls into a tiny little weapon of war: the subjective and objective, drawing from what Arnie actually knows and what fucking everyone should know in that circumstance to decide what harms are reasonably foreseeable as a result of Arnie forgetting to take care in his wanking.

For example, burning down or damaging property, or harming people, in his own house could definitely be within the scope of foreseeable harm, and therefore Arnie is only allowed to pleasure himself in an asbestos coated room with firemen watching to prevent that harm. But would a reasonable person perceive that their flammable feel-good moments could cause a massive fire to spread from their house to the neighbors? If not, there’s not liability because it was not a reasonably foreseeable harm that could result from the conduct, and therefore Arnie owes no duty of care to the neighbor to keep their house from becoming a very disturbing Chicago Fire homage.

In other words, there has to be two areas in which the “reasonable person similarly situated standard” is applied: in determining whether or not the activity is one that can result of harm, and the next in determining what type of harm the actor should be guarding against. When you combine those two things, you end up with the “duty of care” that has to be breached, and it’s all based on what someone else in your circumstances should have expected to happen.


It doesn’t matter, and then again it does.

In general, the “what are the circumstances we should apply to a reasonable person” test isn’t going to be very narrow. If we sat there and said “What would a reasonable 25 year old in the throes of passion while playing a game of Halo in a fireworks factory and striking matches after drinking 17 beers expect to happen?” the test would be too narrow and nobody would ever be held to task for being a dumbass. That’s being way too subjective.

At the same time, we do sort of narrow the circumstances a little bit, such as “What would a person lighting matches in a fireworks factory expect?” But that’s about as narrow as you’re getting, because the focus on the negligence test is on the objective person, not the subjective portion. It’s meant to hold everyone to someone acceptable level of care community wide.

That said, there are times we apply special circumstances, such as when the actor is a child. In that case we may say “what would a child of the same age and experience reasonably expect?”

Shit, in some areas we even say that kids below a certain age are incapable of committing negligence because they lack the capacity to foresee things.

Same thing with professionals. We modify the standard of care there again to “What would a reasonable [insert profession here] in the same community expect?”

But that’s about as far modified as it gets.


In the realm of negligence, the reasonably prudent person is responsible…and kind of a drag. For the most part, when someone is accused of negligence the question of liability is going to rest on putting the vast majority of populace into your shoes, broadening the scope a bit, and using that to determine if you should have known harm may result and should have expected the harm that did result. If so, you got negligence, my friend.

And with that, I’ll bring our discussion of the states of mind to an end. Join us next time for our replacement to Film Friday for this month, Fandom Friday, where I delve into a legal issue or case surrounding a certain subset of society that really fucking likes one thing

Till then, take it easy.


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One thought on “Liable but not Culpable, Part 4: Lexplaining Negligence and the Reasonably Prudent Person”

  1. If you can get your head around this distinction:

    “We hold them not to the standard of a reasonably prudent lawyer, but to the standard of a reasonably prudent person who happens to be a lawyer.”

    You should probably consider going to law school, because you’re not good for much else except maybe being a PoMo philosophy professor and everybody should draw THAT line.

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