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

The cost of personal tort actions in the US was $87.4B in 2006, with major categories of disputes including car accidents, asbestos injuries, and medical malpractice. These are areas where legal laymen, working people, seek aide and unbiased fair judgment from the courts to determine where the burden of these billions of dollars in costs falls in the wake of unexpected mishaps. The law’s tool used to provide this help is 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.

To determine liability under the reasonable person standard, the law asks fact finders to decide if a person acted reasonably or negligently. The criterion for satisfying reasonableness varies from one situation to the next and is defined by "society," through a judge or jury. The fact finder can consider the unique circumstances surrounding each situation but the peculiarities of the individual, such as the person's age, knowledge, or intelligence cannot be taken into account. This is in an attempt to be objective, fair, unbiased, and create a uniform standard of care without regard to the idiosyncrasies of the defendant.

Although a determination of reasonableness in assigning liability makes sense, the present standard conflicts with its intended 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 defendant and his actions. Hence, the popular belief among litigators that by picking the jury the outcome of the case is decided.

Second, the standard cannot be reasonable because there is no fairness in judging a person's conduct without considering individual traits of person. This is not to suggest that any peculiar characteristic should or would act as a defense against liability. However consideration of relevant facts about a person that could arguably have an effect on the reasonableness of their chosen actions are relevant and should be heard.

As an example, 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 plaintiffs from bearing the burden of damages caused by the dumb. However, a benefit to society would be if beyond satisfying an individual plaintiff, the standard generally discouraged damage causing behavior.

A man “below the level” of intelligence who consequently is unable to prevent damages is unlikely to concurrently be intelligent enough (or have the option due to necessity) not to engage in the actions at all. The imposition of liability on this man prevents no accidents and if anything discourages others from protecting themselves and their property financially through insurance. Therefore, the reasonable man standard today is nothing more than permission to a judge or jury to impose liability on those it wishes, justifying their decision by fairness defined ad hoc.

The Reasonable "Reasonable Person" Standard

To truly benefit social welfare, the standard should be modified to consider subjective factors. True objectivity, absolute lack of bias or prejudice, is impossible with human fact finders. If we acknowledge this, a change to take into account relevant subjective qualities of an individual as fairness demands, such as intelligence or age, is a better method for combating bias or prejudice than the current model. A subjective model allows courts to openly take into account the individual's qualities that matter while defining and policing the consideration of those characteristics that are absolutely inappropriate or irrelevant. We should embrace the concept of legal realists and recognize that whatever objectivity goals our system claims, the result is that a diverse group of defendants will not be judged identically. Our model should not ignore this permanent reality but address it and ensure that the system of judgment, although not objective, at least strives to be fair.

How we assign over $80B in tort action costs is important. Although I am sensitive to the plaintiffs in these actions who have sustained losses, defendants too will have their lives heavily affected by financial liability. We should not assume that our less stringent approach to assigning liability in tort actions as compared to crimes is acceptable. Although the social and psychological harm caused by criminal penalties are distinguishable from tort liability, for the thousands of people who anxiously await to see if their unintentional conduct will destroy their financial futures, and therefore indirectly other areas of their lives, the standards that we use to decide their fates are of the utmost importance and assignment of liability is effectively a state applied punishment. We should accordingly craft our tools for determining liability with the uncompromising goal of achieving fairness before administering punishment, with a presumption in favor of the defendant. This requires a reformation of the reasonable person standard, not to change the question, was this conduct reasonable, but to assess all relevant factors in answering it. It’s absurd to suggest that this can be done without looking to his individual characteristics.