United States: Guest Post – Tis Better To Try And Fail, Then To Have Never Tried At All: Internal Corporate Policies Do Not Create A Heightened Legal Duty

Last Updated: November 19 2016
Article by James Beck

What follows is a guest post by Cara DeCataldo, a Reed Smith associate, who gamely stepped up to the plate to research one of a number of blogging topics that have been hanging fire for some time now.  This topic is a type of "no good deed goes unpunished" liability – whether a defendant whose internal policies aspire to a degree of care that exceeds legal requirements can be sued solely because it allegedly failed to live up to those high aspirations.  The two most common theories that purportedly support such a result are negligence per se and negligent undertaking.  Thankfully, Cara's research indicates that such liability is not recognized.

As always, our guest posters are entitled to all of the credit, and any blame, for their efforts.


Clearly articulated company policies imposing heightened safety standards on a company and its employees can't be a bad thing, right?  But what happens when a Plaintiff attempts to use a company's alleged failure to comply with its own corporate aspirations as the basis for a lawsuit?  There is an inherent tension between a company's desire to set high standards for employee conduct and/or its products, and the fear of liability if those standards are not met.  With this in mind, we thought it would be a worthwhile to take an in-depth look at whether internal company policies that exceed what the law requires, can also pose the risk of creating a legal duty.

For those companies seeking to hold employees and/or products to ambitious standards of care, the news is largely good.  Most courts to address the issue support these endeavors and recognize the value of encouraging companies to maintain high voluntary standards.  They also recognize the potential negative impact if those goals were misused to create legal duties to the public.  Negligence per se claims consistently fail when citing various official pronouncements that encourage, but do not mandate, conduct, such as company credos, internal agency manuals, protocols, policy statements, and the like, as relevant evidence of the alleged negligence. Many states take matters a step further and bar the admission of company policies even as evidence of negligence. The most frequently applied rationale barring the admission of internal policies is that to the extent internal rules and regulations exceed the standard of care, then they are not admissible.

In drug and device cases, plaintiffs sometimes try to heighten the standard of care by arguing that corporate policies and procedures mandate the appropriate standard of care.  A typical plaintiff tactic is to review internal policies and point to how certain things were done contrary to those policies.  Plaintiffs' experts review these policies as well and use them to support their opinion that the violation of such policies is evidence of the company's negligence.

Recently, this scenario has played out in litigation involving an OTC product.  Plaintiff-side experts sought to quote the defendant's corporate credo – which made certain statements about policies regarding communication of product-related risk information to consumers – to suggest that the defendant company had violated legal standards of care.  The defendant argued for exclusion of that expert's testimony on the basis that any opinions about such a credo were an improper attempt to transform a corporate policy into a legal standard for liability and should be rejected. In In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prods. Liab. Litig., 2016 WL 807377, at *8 n. 22 (E.D. Pa. Mar. 2, 2016), the Court excluded the expert testimony:

[The expert's] use of the [defendant's] Credo to show "standard of care" would also be inappropriate. The defendants' own Credo should not be held out as the legal standard by which it should conduct its affairs. See Johnson v. Mountainside Hospital, 239 N.J. Super. 312, 323, (App. Div. 1990) ("It was potentially misleading because it attempted to exalt an exhortatory statement in the by-laws of the Hospital into the legal standard for determining whether or not the defendant physicians committed malpractice. The relevant legal standard is defined by law.").  Additionally, any probative value the Credo may serve would be substantially outweighed by the potential jury confusion—of this standard with what was legally required. See In re Paoli RR Yard PCB Litigation (Paoli II), 35 F.3d 717, 747 (3d Cir. 1994) (explaining how "Rule 403 gives a judge more power over experts than over lay witnesses" but this exclusion of evidence should only happen when they is "something particularly confusing about the scientific evidence at issue—something other than the general complexity of scientific evidence").

            The Court rejected plaintiff's argument that a corporate credo simply serves as an acknowledgement of the standard of care to which they must adhere.  Instead, the Court found that this type of statement was aspirational: requiring more of its employees than the legal standard of care (i.e., putting consumers, not shareholders, first).  Allowing the company to be judged on this standard could discourage companies from creating internal policies that go beyond what the law asks.

The Acetaminophen litigation being an MDL, plaintiffs tried again with a second expert, this time purporting to testify about "pharmacovigilence."  Same result – indeed, same language. In re Tylenol (Acetaminophen) Mktg., Sales Practices, & Prods. Liab. Litig., 2016 WL 4039271, at *10 (E.D. Pa. July 28, 2016).

These results are certainly not outliers – although there aren't any other drug/device examples that we were able to find.  Most of the attempts to impose heightened liability based on internal policies are brought either under the rubric of "negligence per se" or else under a negligent undertaking theory.


Lugtu v. California Highway Patrol, 28 P.3d 249 259 (Cal. 2001) (police officer safety manual policies could not be viewed as establishing the applicable standard of care, but they may be considered by the trier of fact in determining whether an officer was negligent in a particular case); Salazar v. S. Cal. Gas Co., 63 Cal. Rptr. 2d 522, 525-32 (Cal. App. 1997) (internal company policy of warning customers that elevating water heaters to at least eighteen inches would reduce the risk of flammable vapors being ignited did not create any duty).


Rupert v. Clayton Brokerage Co., 737 P.2d 1106, 1111 (Colo. 1987) (internal rules of brokerage firm relevant, but did not establish, any standard of care for breach of fiduciary duty).


Joseph v. Monroe, 419 A.2d 927, 931 (Del. 1980) (provision of handbook regarding supervisory responsibility of teachers did not carry force and effect of law, and violation thereof did not constitute negligence per se).

District of Columbia

Clark v. District of Columbia, 708 A.2d 632, 636 (D.C. 1997) ("an ... internal agency procedure [that is] not a statute or regulation ... cannot embody the standard of care under a negligence per se theory" because "expert testimony [is] still required to establish that the [internal policy] embodied the national standard of care and not a higher, more demanding one").


Boutilier v. Chrysler Ins. Co., 2001 WL 220159, at *1 (M.D. Fla. Jan. 31, 2001) (that defendant has internal corporate policy does not create a legal duty of care or cause a breach of that duty).


Gondeck v. A Clear Title & Escrow Exch., LLC, 47 F. Supp.3d 729, 745 (N.D. Ill. 2014) (defendant's corporate code of conduct did not create a legal duty); see also Rhodes v. Ill. Cent. Gulf R.R., 665 N.E.2d 1260, 1272 (Ill. 1996) ("[w]here the law does not impose a duty, one will not generally be created by a defendant's rules or internal guidelines."); Asmus v. Mac's Convenience Stores, LLC, 438 F. App'x 505, 507 (7th Cir. 2011) ("general policies in an employee handbook are not contractual promises" that can impose a legal duty); Shank v. H.C. Fields, 869 N.E.2d 261, 268 (Ill. App. 2007) ("Violation of self-imposed rules or internal guidelines . . . do not normally impose a legal duty, let alone constitute evidence of negligence."); Fillpot v. Midway Airlines, Inc., 633 N.E.2d 237, 244 (Ill. App. 1994) (declining to recognize a legal duty based on the defendant company's policy manual); Blankenship v. Peoria Park Dist., 647 N.E.2d 287, 291 (Ill. App. 1994) (no legal duty arose from the defendant's internal staffing rules); Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 507 N.E.2d 1193, 1198 (Ill. App. 1987) ("a legal duty is normally not established through rules and regulations . . . or internal guidelines"); Dezort v. Vill. of Hinsdale, 342 N.E.2d 468, 472 (Ill. App. 1976) ("The failure to comply with self-imposed regulations does not necessarily impose . . . a legal duty . . . nor does the failure to comply with such regulations make a case of prima facie liability").


Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 894-95 (Ind. 2002) ("the law has long recognized that failure to follow a party's precautionary steps or procedures is not necessarily failure to exercise ordinary care" and finding this rule sound because it encourages a company to follow best practices without establishing them as a legal norm).


Flechsig v. U.S., 991 F.2d 300, 304 (6th Cir. 1993) (applying Kentucky law) (allegation of violation of defendant's internal regulations does not establish negligence per se).


Zdrojewski v. Murphy, 657 N.W.2d 721, 730  (Mich. App. 2002) (internal company policies may not be used to establish a legal duty in a negligence claim); Burnside Indus., LLC v. CB Richard Ellis, Inc., No. 268343, 2006 WL 2418937, *2 (Mich. App. Aug. 22, 2006) (if duties to protect their employees or customers were imposed based on work rules or policies, companies would abandon such efforts that could benefit such employees or customers, in order to avoid future liability).


Shoemake v. Rental Service Corp., 2008 WL 345498, at *1 (S.D. Miss. Jan. 30,, 2008) (internal company guidelines are not conclusive and do not establish a standard of care, but are relevant evidence).

New Jersey

Johnson v. Mountainside Hospital, 571 A.2d 318, 323 (N.J. App. Div. 1990) (hospital by-laws stating that all patients should receive "the best possible care" was not admissible because the standard of liability is a legal one set by the law and not by internal policies); Cast Art Indus., LLC v. KPMG LLP, 3 A.3d 562, 580-81 (N.J. App. Div. 2010) (applying a company's internal procedures to impose a higher standard of care than common-law standard could discourage companies from creating procedures that exceed common law duties), rev'd on other grounds, Cast Art Indus., LLC v. KPMG LLP, 36 A.3d 1049, (N.J. 2012).

New York

Branham v. Loews Orpheum Cinemas, Inc., 819 N.Y.S.2d 250, 323 (N.Y. App. Div. 2006) ("While a defendant's internal rules may be admissible as evidence of whether reasonable care was exercised, such rules must be excluded, as a matter of law, if they require a standard of care which transcends the traditional common-law standard of reasonable care under the circumstances.").

North Carolina

Mynhardt v. Elon Univ., 725 S.E.2d 632, 636 (N.C. App. 2012) (no legal duty imposed by adoption of policies by universities to deal with student drinking and other incidents); Hall v. Toreros II, Inc., 626 S.E.2d 861, 867 (N.C. App. 2006) (imposing a legal duty from the adoption of internal policies "would serve only to discourage, indeed penalize, voluntary assumption or self-imposition of safety standards"); McCants v. Nat'l Collegiate Athletic Ass'n, 2016 WL 4272362, *8 (M.D.N.C. Aug. 12, 2016) ("the adoption of rules, policies, and procedures is insufficient as a matter of law to impose a legal duty based on the voluntary undertaking doctrine"); Phillips v. Sheetz, Inc., 2013 WL 5567423, *1 (W.D.N.C. Oct. 9, 2013) (company policy that provides for a harassment-free workplace for its employees is insufficient to create a duty owed from employer to employee).


Titchnell v. United States, 681 F.2d 165, 173 (3d Cir. 1982) (defendant's internal policies do not, taken alone, establish the applicable standard of care); Ruder v. Pequea Valley School Dist., 790 F. Supp.2d 377, 402 (E.D. Pa. 2011) (negligence per se cannot be found based on a plaintiff's allegation that a defendant has breached its own policy); Hower v. Wal-Mart Stores, Inc., 2009 WL 1688474, *6 (E.D. Pa. June 16, 2009) (defendant's internal policies not the equivalent of its duty of care . . . "A store owner like Defendant should not be faced with a lawsuit for negligence by failing to live up to a heightened, self-imposed duty of care.")

South Dakota

Morrison v. Mineral Palace Ltd. Partnership, 603 N.W.2d 193, 196 n.4 (S.D 1999) (failure to comply with a company rule does not constitute negligence per se; while admissible evidence, such a policy does not set forth a standard of conduct that establishes what the law requires of a reasonable person under the circumstances).


Haney v. Bradley County Bd. of Educ., 160 S.W.3d 886, 892-93 (Tenn. App 2004) (violation of internal policy could not form basis of negligence per se claim because the applicable standard of care owed was established by law, not by policy).


FFE Transportation Services, Inc. v. Fulgham; 154 S.W.3d 84 (Tex. 2006) (defendant's self-imposed inspection policy, taken alone, did not establish the standard of care that a reasonably prudent operator would follow); Boudreaux v. Swift Transp. Co., 402 F.3d 536, 543 (5th Cir. 2005) ("a company's self-imposed policy with regard to inspection, taken alone, does not establish the standard of care that a reasonably prudent operator would follow"); Texas Southwestern Med. Supply, Inc. v. Texas Commerce Bank – Dallas, N.A., 1994 WL 246169, at *4-7 (Tex. App. – Dallas June 2, 1994, n.w.h.) (internal procedures cannot superimpose a legal requirement over and above the UCC) (not designated for publication).


Pullen v. Nickens, 310 S.E.2d 452, 456–57 (Va. 1983) (reversible error for internal employee guidelines to be admitted to establish standard of care where plaintiff neither knew about nor relied upon the internal guidelines); McDonald v. Wal–Mart Stores East, LP, 2008 WL 153782, at *5-6 (E.D. Va. Jan. 14, 2008) (internal store policies could not be used to establish the common law standard of care); Hudson v. Wal-Mart Stores E., L.P., 2007 WL 2107466 , at *3 (W.D. Va. July 20, 2007) (applying Virginia law) ("Violation of company policy does not show a breach in the standard of care.").


Joyce v. Dept. of Correction, 119 P.3d 825, 834 (Wash. 2005) (internal directives and department policies may provide evidence of the standard of care but the jury must be instructed that a violation of such a policy is not negligence per se).

West Virginia

Cavcon Inc. v. Endress & Hauser, Inc., 557 F. Supp.2d 706, 724 (S.D. W. Va. 2008) (without a special relationship such as that created by contract, violation of company credo regarding communications did not create any duty in tort).


Given what research reveals about the state of the law in this area, to the extent that other drug or medical device plaintiffs who make arguments similar to those in the Acetaminophen litigation are no more likely to be successful.  Remember, however, that because we don't do the other side's research for them as a matter of policy, it is possible that a bit of adverse precedent exists.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

James Beck
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.