by Wilton H. Strickland

Litigators often encounter an argument that just “feels” wrong, but they struggle to recall if there is a body of case law refuting it. One such argument that often bedeviled me was whenever a plaintiff alleged a violation of a company’s internal policies and procedures to prove that the company had been negligent. On one occasion I took the time to delve into this argument and found that, indeed, a body of case law refutes it. I now have that authority on tap and frequently update it when encountering this argument for the umpteenth time.

A large number of courts across the country hold that an internal policy does not establish the legal standard of care. See Holtshouser v. United States, No. 13-35457, 2014 U.S. App. LEXIS 23627, at **3 (9th Cir. Dec. 11, 2014) (discussing Montana law); Briggs v. Wash. Metro. Area Transit Auth., 481 F.3d 839, 848 (D.D.C. 2007) (multiple citations omitted); Pomahac v. Trizechahn 1065 Ave. Of The Ams., LLC, 884 N.Y.S.2d 402, 405, 406 (N.Y. App. Div. 2009) (multiple citations omitted); Cast Art Indus., LLC v. KPMG LLP, 3 A.3d 562, 580, 581 (N.J. Super. Ct. App. Div. 2010) (multiple citations omitted), rev’d on other grounds, 36 A.3d 1049 (N.J. 2012); Terry v. McNeil-PPC, Inc. (In re Tylenol (Acetaminophen) Mktg., Sales Practices, & Prods. Liab. Litig.), No. 2:12-cv-07263, 2016 U.S. Dist. LEXIS 99177, at *33-*34 n.11 (E.D. Pa. July 28, 2016); Warren v. K-Mart Corp., 765 So. 2d 235, 237 (Fla. 1st DCA 2000).

The basis of this rule is to encourage people to set the bar high for themselves rather than condemn them for it. “To hold otherwise would create the perverse incentive for [a defendant] to write its internal operating procedures in such a manner as to impose minimal duties upon itself in order to limit civil liability[.]” Briggs, 481 F.3d at 848.

If you need to find authority in your own jurisdiction for this rule, you can look at these decisions and follow up on them or their headnotes.