The Unreasonableness of the "Reasonable Person" Standard in Personal Torts

-- By MakalikaNaholowaa - 12 Feb 2008

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

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.

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

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.

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.

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.

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.

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

-- MakalikaNaholowaa - 14 Feb 2008