Class 12

          In the medical setting, professional custom, not reasonableness, sets the standard of care. But whose customs should count? Should courts account for resource constraints in particular communities or hold doctors to a national standard? And does it make sense for the standard of care of doctors to differ from the ones applied in most other settings?

          Custom can be proof of negligence in other settings as well. According to the Restatement (Third) of Torts, “complying with custom confirms that the actor has behaved in an ordinary way.”  Restatement (Third) of Torts: Phys. & Emot. Harm § 13 cmt. a (2010).  The Restatement further provides that compliance with custom is “evidence that the actor’s conduct is not negligent but does not preclude a finding of negligence.”  Id. § 13. Compliance with custom can be evidence of reasonable conduct, but some customs themselves may be questionable. And in some circumstances, the parties will have asymmetric information about the risks in question. How should custom matter then?

          Finally, in some negligence cases, there is little evidence of any kind. Courts have used the doctrine of res ipsa loquitur (“the thing speaks for itself”) to assign liability in such cases. But what is the effect of res ipsa? Does it effectively shift the burden of proof or persuasion to the defendant? Or is better thought of as a form of circumstantial evidence?