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< | Unsophisticated Defendants & the Unreasonableness of "Reasonable Person" Standard |
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> | The Unreasonableness of the "Reasonable Person" Standard in Personal Torts |
| | -- By MakalikaNaholowaa - 12 Feb 2008 |
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< | /** Notes:
Black's Law Dictionary Definitions
reasonable, adj. 1. Fair, proper, or moderate under the circumstances < reasonable pay>.
(unreasonable must then be: unfair or improper under the circumstances)
reasonable person. 1. A hypothetical person used as a legal standard, esp. to determine whether someone acted with negligence; specif., a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others' interests.
objective, 2. Without bias or prejudice; disinterested .
undue prejudice, 2. A preconceived judgment formed without a factual basis; a strong bias.
F. Harper, F. James, Jr. & O. Gray, 3 The Law of Torts 389-90 (2d ed.1986)
"...reasonable person is...capable of making mistakes and errors of judgment...but only to the extent that any such shortcoming embodies the normal standard of community behavior. ... Thus the standard represents the general level of moral judgment of the community, what it feels ought ordinarily to be done, and not necessarily what is ordinarily done, although in practice the two would very often come to teh same thing."
Holmes, The Common Law 108-10 (1881)
"When men live in a society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare."
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> | The cost of personal tort actions in the US was $87.4B in 2006, with major categories of disputes being car accidents, asbestos injuries, and medical malpractice. These are areas where legal laymen – the average Joe’s – seek aide and unbiased fair judgment from the courts to determine where the burden of costs falls in the wake of unexpected mishaps. The law’s approach to providing this help is the use of the “reasonable person” standard. As it is defined and used in courts today, this standard is misleadingly named and should be modified so that its actual effect matches its purported purpose. |
| | An Oxymoron Standard: Subjective Objectivity and Unfair Reasonableness |
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< | To determine liability, must decide if person acted reasonably or negligently.
Reasonable person is judgment that "society," aka judge/jury makes.
Judge/Jury not allowed to take into account the individual's attention/knowledge/intelligence, in an attempt to be objective, and create a uniform standard of care without regard to the peculiarities of the defendant. |
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> | To determine liability under the reasonable person standard, the law asks fact finders to decide if person acted reasonably or negligently. Criteria for reasonableness made by "society," through a judge or jury. The fact finder however, is not allowed to take into account the individual's age, knowledge, or intelligence, (except in certain circumstances involving children and adult activities). This is in an attempt to be objective, fair, unbiased, and create a uniform standard of care without regard to the peculiarities of the defendant. |
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< | First, standard can not be objective because of the bias and prejudices each fact finder will bring when considering the actions. (Hence, concept that picking the jury determines the outcome of the case.)
Second, standard can not be reasonable because there is no fairness in judging a person's conduct without considering individual traits of person, particularly intelligence. |
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> | However, although some standard is necessary, it’s apparent that this standard conflicts with its purported purpose of objectivity and could not possibly hope to result in the fair result it claims to seek. First, the standard cannot be objective because of the bias and prejudices each fact finder will bring when considering the actions. Hence, the popular belief amongst litigators that by picking the jury the outcome of the case is decided. Second, the standard can not be reasonable because there is no fairness in judging a person's conduct without considering individual traits of person, particularly intelligence. |
| | Practical Effect: Social Welfare & The Common Man |
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< | Not concerned here with effect on sophisticated parties, such as corporations that can hire specialists to predict their liability and guide their conduct, focused instead on private citizens. |
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> | As Holmes has explained, at present this standard leaves men who "fall below the level" in gift of intelligence to act at their peril. This does not benefit the social welfare as he suggests, because it does not motivate behavior changes needed to reduce damage causing events. It may ease our anxious hearts to know that the law will act in some ways similar to insurance, preventing us from paying for the damages caused by the dumb. However, we should not buy the lie that this discourages damage causing behavior - a man without “reasonable man” level of intelligence who consequently is unable to prevent damages is unlikely to concurrently be intelligent enough not to engage in the actions at all. The liability prevents no accidents and if anything discourages others from protecting themselves financially through insurance. Additionally, another effect of this standard is an allowance to judges and juries to exercise discretion and compensate those it wishes, justifying their decision by fairness defined ad hoc. |
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< | Not helpful standard for men who "fall below the level" in gift of intelligence AND standard does not benefit the social welfare by preventing damages - do we assume that man without average intelligence needed to prevent damages is alternatively intelligent enough not to engage in the actions at all? |
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> | The Reasonable "Reasonable Person" Standard
Fairness & Objectivity
To benefit general welfare as Holmes states is necessary, standard should be modified to consider subjective factors. True objectivity, absolute lack of bias or prejudice, is impossible with human fact finders. A more subjective approach is not completely unpredented. This has already been done to raise the bar of expected care in the case of professionals/experts. Same reasoning for this should apply to all cases. This will place liability on some where it wasn't before, and similarly will relieve liability in some cases. |
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< | True effect: Standard provides judges and jury the discretion to compensate those it wishes for damages and justify their decision by fairness defined ad hoc |
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> | Compensatory Damages
May change cases in which compensation is provided for damages - however not uniformly to the detriment of plaintiffs as discussed in fairness section. Many cases already force those who experience damages to bear the burden of them - allowances already made for other instances where it is deemed "unfair" to apply liability to other parties, such as case of physical disability of defendant. Changes to standard provides incentive to plaintiffs to insure against cost of damages, where stupidity can not be cured by liability under current standard. |
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> | Difficulty to Courts
Yes - forces courts to consider a factor difficult to prove and quantify. So what? Courts do that all the time. Not willing to sacrifice fairness because of burden on courts to consider the individual whose future it is deciding. |
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< | The Reasonable "Reasonable Person" Standard
Fairness
To benefit general welfare as Holmes states is necessary, standard should be modified to consider evidence of intelligence.
This has already been done to raise the bar of expected care in the case of professionals/experts. Same reasoning for this should apply to all. This will place liability on some where it wasn't before, and similarly will relieve liability in some cases.
Objectivity
Is a fallacy anyways. As described above, impossible to take bias out of decisions made by people. Should instead be upfront with areas in which judgments are subjective and properly so.
Compensatory Damages
May change cases in which compensation is provided for damages - however not uniformly to the detriment of plaintiffs as discussed in fairness section.
Many cases already force those who experience damages to bear the burden of them - allowances already made for other instances where it is deemed "unfair" to apply liability to other parties, such as case of physical disability of defendant. Changes to standard provides incentive to plaintiffs to insure against cost of damages, where stupidity can not be cured by liability under current standard. |
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< | Difficulty to Courts
Yes - forces courts to consider a factor difficult to prove and quantify. So what? Courts do that all the time. Not willing to sacrifice fairness because of burden on courts to consider the individual whose future it is deciding. |
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> | I love the idea. You might want to read Kenneth Abraham's law review article The Trouble with Negligence which touches on some of these ideas. His focus is that the negligence standard - as you point out - results in very similar trials coming out differently and the effect that has on the legal system. His conclusion ends up being that negligence is the best standard we have at our disposal, but we should find ways to make it more precise. -- AdamCarlis? 12 February 2008 |
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- I love the idea. You might want to read Kenneth Abraham's law review article The Trouble with Negligence which touches on some of these ideas. His focus is that the negligence standard - as you point out - results in very similar trials coming out differently and the effect that has on the legal system. His conclusion ends up being that negligence is the best standard we have at our disposal, but we should find ways to make it more precise. -- AdamCarlis 12 February 2008
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> | -- MakalikaNaholowaa - 14 Feb 2008
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