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Does the “Everyone Does It” Defense Get A Negligent Party Off the Hook?

A car is manufactured without an airbag.  A community pool is not staffed with important safety equipment.  A rowing club fails to provide life preservers to its members.  As a result of these failures, someone is catastrophically injured or, worse, dies.  A lawsuit is filed and the car manufacturer, pool owner, or boat owner claims that they did nothing wrong because “most” actors in the industry do it that way, i.e., most car manufacturers do not provide airbags, most pool owners do not provide safety equipment, most boating clubs do not provide life preservers.

Are they off the hook?  The answer is: not necessarily.   This raises the issue of the “standard of care.”  In a personal-injury lawsuit, the injured party (plaintiff) will have to prove that the allegedly negligent party (defendant) did not act within the “ordinary custom and practice” of the relevant field.  Put another way, the plaintiff must prove that the defendant did not act as an “ordinary person” would have under the circumstances.

So isn’t the “ordinary person” standard defined by what the majority of persons in the industry do?  Well, it may be, but it may not be.  What if an entire industry is behind the times?  What if an entire industry refuses to adopt new safety standards because they do not want to pay for it?

This is not a new issue in the law.  In fact, in 1997, the highest court in the District of Columbia recognized that “the fact that some or most persons who are in a position similar to the defendant fail to act reasonably and prudently does not absolve the defendant of liability.” Ray v. American National Red Cross, 696 A.2d 399 (D.C. 1997).  While the defendant is allowed to produce evidence that he acted with the majority and thus, was not negligent, the plaintiff is, likewise, allowed to show that the “majority rule” is old, out of date, or behind the times.  It is then up to the jury to decide – as our Founding Fathers enshrined in the Seventh Amendment — who is correct.

A similar argument is often made where a law is missing.  For instance, the allegedly negligent actor claims he is not negligent because “no law required me to have the missing safety equipment.”  The answer to that question… what?  Do we really think that legislators have the time time pass up-to-date safety laws in every area of commerce?  Are they free from lobbying influences that might prevent them from passing an important safety rule?

Of course not.  And that is why the jury system is so terrific.  It is the one area where ordinary citizens – free from influence and with full power – are allowed to make commonsense decisions.