Example

Take this example. Meticulous Max noticed that the brakes on his car were not working properly. Feeling the car was unsafe to drive, on Monday, Max made an appointment for his mechanic to pick up the vehicle in a tow truck on Wednesday. Late Monday night the car was stolen. As the thief was driving away in the car, the brakes failed and he crashed into another vehicle. The person driving the other car, Bob Brown, was injured in the accident. Bob sued Max alleging that Max was negligent in failing to properly maintain his automobile. Because of the high incidence of stolen cars, Max "should have" reasonably foreseen that his car might be stolen and, if stolen, the faulty brakes would likely cause injury to someone. On this theory, Bob was successful and was awarded $325,000 by the jury. Clearly, Max thought he was exercising due care by not driving his car and by arranging for an appointment to have the brakes fixed. However, the jury expanded the concept of "due care" ruling that Max acted improperly by agreeing to wait two days to have his car repaired.

This leaves us with a legally required standard of behavior that cannot be ascertained in advance. (And with which most people in Max’s town would disagree.) We know we have to be careful, but we do not know what that means. It is impossible to anticipate what standard a jury will impose with the advantage of hindsight. That is the problem.