You know you’re in law school when thoughts like this enter your mind unbidden . . .
Out in front of the bookstore where I work, we have a patio with some tables. In the middle of the patio is a tree. This being autumn, the leaves on the tree are falling off, so the patio is covered with lovely orange and yellow leaves.
After closing this evening, I was out putting the patio furniture away when it struck me that concrete covered in leaves could be pretty dangerous if it got wet. If we were to have a little rain or even some heavy fog, those leaves would get pretty slippery. I imagined some little old lady falling down and breaking her hip. In other words, to use legal terminology, I was able to foresee a plaintiff.
But that’s not all. Once a plaintiff is foreseeable, you have a duty to prevent that person’s injuries. But what is that duty? Again, in legal terminology, this is called the standard of care. Now, in most jurisdictions, the standard of care for a land owner or occupier, as the store where I work would be, is established according to the status of the plaintiff and the condition on the premises that causes the injuries. This is an “artificial condition,” because concrete patios do not occur in nature. And here, since the property is a place of business, my foreseeable plaintiff would probably be an invitee, which is defined as a person who enters the premises for the furtherance of the owner’s interests (in this case, a customer or potential customer, who needs only intend on doing business with us in the future in order to gain the status of invitee). The standard of care of a landowner for an invitee injured by an artificial condition is what’s called “reasonable care.” In other words, you have to do what a reasonable person would do to prevent your foreseeable plaintiff from suffering an injury.
Funny thing, however—California doesn’t require all that analysis. We’re a minority jurisdiction when it comes to the rule about the standard of care for landowners. Here, it doesn’t matter if you’re an invitee, a licensee (someone who enters the property for his or her own benefit, like a social guest), a known or unknown trespasser, or even a person off the premises (but near enough that conditions or activities on the premises may cause injury). None of that matters. Here, the standard of care is the same for everybody: reasonable care.
Yeah, I know, both analytical tracks got us to the same place, but that isn’t always the case. If my foreseeable plaintiff had been, say, an unknown trespasser (someone who intentionally and without authorization enters land that proves to belong to another, and the landowner does not know, nor has reason to know, that he or she has entered), then there would be no duty between the landowner and the trespasser, and if that person slipped and fell and broke a hip, the landowner would probably not be liable.
Anyway, so regarding our leafy patio, we owe duty of reasonable care to any foreseeable plaintiffs. So what is reasonable care again? It’s whatever a reasonable person would do to prevent injury to a foreseeable plaintiff. Here, as a reasonable person, I am recalling from personal experience that concrete coated in wet leaves can bee pretty darned slippery. Since it is November and wet conditions are not unheard of in these parts at this time of year, it is reasonable to suppose that all those leaves could become wet. As well, considering that many of our customers are elderly women, who commonly suffer injuries like broken hips after falls, it is quite reasonable to assume that a reasonable person would sweep up those leaves, lest he be a fool and desire liability.
But there’s an even more precise way to determine reasonable care. You weigh the probability and gravity of potential injury against the burden of prevention and the social utility of the unaltered conduct. Here, the probability that the leaves will get wet and someone will slip on them and be injured is probably moderate. The potential gravity of the injury is moderate, too. But the burden of prevention is very low—just sweep up the leaves! That’s easy. Is there social utility in keeping our patio covered in fallen leaves? Nope. So we have moderate probability and gravity of injury versus almost no burden of prevention or social utility of unaltered conduct, so clearly it is reasonable to sweep up the darned leaves. (And yes, that is exactly the formula we use. At our school we abbreviate it as “PGvBU” or just “PGBU” and pronounce it “pig-boo.” Funny, huh?)
So anyway, I had a note posted for the employee who is opening the store tomorrow, so she knows that the leaves on the patio need to be swept up.
See, this is what law school does. Before law school, I would have just had some vague thought like, “We should probably sweep up those leaves.” Now I break it down into tiny bits that take several paragraphs to explain. All you unwashed masses out there who haven’t been to law school (my civil procedure professor calls you “The Blessed Ones”) probably are not interested in thinking like this all the time. You may even think it’s ridiculously baroque, all this rigamarole about duties and standards and reasonable care and invitees and landowners and whatnot. But the weird thing about the law (at least in our common law tradition) is that it has all grown up around the unarticulated standards of conduct that members of our society have established through custom. Ordinary people may just have some vague thought like, “We should probably sweep up those leaves,” but lawyers and judges come along and ask, “Why?” As time passes and things change, elements of the explanations consequent to that Ultimate Question solidify and become elements of “rules,” which are really just descriptions of how most people (i.e., “reasonable people”) already behave.
Also, notice that I am delegating the task of actually sweeping up the leaves to someone else. I’m too busy having complicated thoughts to do that sort of thing, you see. (Convenient, eh?)
Posted by Peter 
Posted by Peter 
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Posted by Peter 
