• 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

Unsophisticated Defendants & the Unreasonableness of "Reasonable Person" Standard

-- By MakalikaNaholowaa - 12 Feb 2008

/** 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."

*/

An Oxymoron Standard: Subjective Objectivity and Unfair Reasonableness

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.

Practical Effect: Social Welfare & The Common Man

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?

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

The Reasonable "Reasonable Person" Standard

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.

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.