Companies’ Internal Policies Shouldn’t Set the Legal Standard

Reptile theory is a now-familiar tactic by the plaintiff’s bar to move the jury’s attention away from their duty to apply the law to the facts. It goes like this: An attorney identifies a generic, seemingly unobjectionable rule, such as, “There’s nothing more important than safety.” The attorney argues a defendant endangered the community by violating the rule, then urges punishment to reestablish communal safety.

But a critical element is missing: the legal standard of care.

Another theory follows a similar pattern. Plaintiffs’ attorneys are urging juries to hold defendants liable for violating an internal policy. They call on sympathetic facts to obscure the legal standard of care. This isn’t a new tactic, and prior attempts to define the law have tried to safeguard against using an actor’s good intentions and policies against it.

The plaintiffs’ bar recently has attempted to circumvent these longstanding legal principles, which clearly direct courts and juries to focus on the legal standard of care by conflating internal policy violations as automatic violations of the law.

Still, the law hasn’t changed: The legal standard of care alone controls, and it can’t be established purely based on internal policies. Courts often allow the admission of internal policies to inform, but not determine, the legal standard of care. Longstanding wisdom has been that using internal policies against the adopter will discourage actors from promulgating guidelines that exceed the prevailing standard of care.

Some courts have feared that if the burden of enforcing internal policies becomes too great, companies will stop adopting voluntary safety policies altogether. To militate against these risks, many jurisdictions require expert testimony whenever the challenged conduct doesn’t fall within the competence of a jury to evaluate and even may go so far as to exclude an internal policy that goes beyond the traditional common-law standard of reasonable care.

These concerns were at play in a 2023 Florida case Discount Tire v. Bradford, involving a fatal crash that followed a tire change.

A customer purchased two new tires. Discount Tire moved the old rear tires to the front axle and installed the new tires on the rear axle. Four months later, the left front tire separated. The customer crashed, and he and his son died.

The plaintiff argued that Discount Tire’s internal policies created a legal duty, and that Discount Tire violated its policy not to service any tire over 10-years-old when it rotated her husband’s 14-year-old tires. The plaintiff’s expert described Discount Tire’s policy as “above and beyond” and “one step higher than other tire retailers.”

The trial court initially directed verdict in Discount Tire’s favor, but it ordered a new trial based on the plaintiff’s argument that Discount Tire’s violation of internal policy could support a negligence claim.

The appellate court reversed, holding instead that the industry standard of care controls and not internal policies. By doing so, it protected the company’s best efforts to exceed industry standards, signaling that good deeds wouldn’t be punished.

Undeterred, plaintiffs are testing new ways to focus the jury on the conduct expected based on an internal policy, rather than the conduct expected of a reasonable person. Trial attorneys are seeing plaintiffs’ attorneys use this strict compliance theory in a wide array of litigation disputes beyond product liability, including employment, premises liability, and medical malpractice.

So far, the news is good: Courts often reject or curtail plaintiffs’ attempts to obscure the legal standard of care. But a court can protect the legal standard only if defendants recognize these tactics and bring them to the court’s attention.

When you suspect a plaintiff will try to substitute a violation of an internal policy for evidence of the standard of care, you have options. The goal, assuming there was a violation, is to sever any connection between your client’s policy and the legal standard of care. Make sure the plaintiff is not disguising a claim that requires expert testimony as a claim that does not.

You also should argue that an internal policy is just that: internal guidance that shouldn’t be a substitute for the careful training and judgment of employees. It’s not an objective community standard and can’t establish the standard of care a reasonable person would expect.

If the court still believes the policy is relevant, argue for its exclusion under the evidentiary rules because its probative value is outweighed by its prejudicial effect.

If the policy is admitted, argue for jury instructions that limit the extent to which the jury may consider the internal policy. Ensure that the instructions cannot be read to imply that the policy is presumed or intended to represent the minimum standard of care. And where trial courts make mistakes, be sure to preserve your objections so that the appellate court can review.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Marissa S. Ronk is partner at national trial and litigation firm Wheeler Trigg O’Donnell.

Kaleb D. Gregory is an associate at Wheeler Trigg O’Donnell.

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