Micheal J. De Vinne, lawyer and historian, recently wrote a quite delightful piece tracing the evolution of that ubiquitous legal fiction, the "reasonable person." See "The Reasonable Person as a Living Fossil," ABA Journal of the Section of Litigation, Vol. 37, No. 1, Fall 2010. In tracing its evolution, he concludes the reasonably person is never defined by the law but rather left to a panel of peers to define based on the collected mores of the times.
De Vinne observes that tort law begins with the Golden Rule, "love thy neighbor as thyself," but it first limits and modifies that rule by defining who the relevant neighbor is. As described in Donaghue v. Stevenson, [1932] A.C. 562 (H.L.) 580, "[t]he rule that you are to love your neighbour becomes in law, you must not injure your neighbor; and the lawyer's question, Who is my neighbour? receives a restricted reply." There the court concluded neighbors are those "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into questions."
After identifying the relevant neighbor, the law then defines "just how much care" we owe the "legally limited neighbor." Over the years and Restatements, the conclusion has been the same: "the conduct of a reasonable person under similar circumstances." Citing Rest. First and Second, Sec. 283. Of course, as De Vinne points out, this means the reasonable person standard, then is "no more than a standard to establish a standard."
Thus, in each case the jury (or other fact finder) must "create[] its own, one-of-a-kind reasonable person, who by hypothetical conduct,under the facts as the jury [or other fact finder] finds them, establishes the standard by which the allegedly negligent party is judged." As De Vinne poignantly puts it, the reasonable person "lives an ephemeral life," and "dies as soon as the jury has rendered its verdict." However, that reasonable person may become "fossilized" in case law, if appeal is taken, and it is from this "fossil record" that De Vinne traces the reasonable person's evolution over the years.
De Vinne notes a number of mechanisms and methodologies that have been used over the years to define the reasonable person, but ultimately he is notable for three attributes, (1) ordinary reasonableness, (2) ordinary carefulness, and (3) ordinary prudence, all of which are in turn depend on reasonable knowledge, sufficient to render foresight possible.
Over the years, the reasonable man was assumed to share the knowledge base of the community in which he was operating. See Lorenzo v. Wirth, 49 N.E. 1010 (Mass. 1898) (imputing knowledge of local mores concerning open coal pits to a recent arrival from Spain). From about the same time as the Lorenzo decision, however, the way in which the reasonable person is believed to reason has evolved quite significantly. Judge Learned Hand ultimately developed the infamous PL>B formula, in which the reasonable person is expected to measure the probability of loss (includes both the likelihood and seriousness of injury) against the burden or cost of taking action to prevent that loss. Later, Judge Posner would argue that we should do away with the reasonable person entirely and simply have the jury directly the PL>B formula.
However, the catch is that applying this formula--known in economic circles as the Coase Theorem-- depends on perfect knowledge, which in fact rarely exists. De Vinne argues that, to account for this conundrum, jurists and the Restatements slyly imported "social values" into the mathematical mix. In other words, because the reasonable person lacks perfect knowledge of the economic costs and benefits, he is believed to instead uses this "other metric" to analyze the issues. And how is that done?
The Restatement (First) tells us "the utility of conduct" is determined by "the value which the law attaches" to each person's "interests," but De Vinne pointedly asks how a jury can determine what value the law attaches if the court itself cannot determine that?!. De Vinne answers this riddle by pointing to a "buried" comment in the Restatement. In Comment B to Section 292, the Restatement (First) provides that "[t]he value attached by the law to the great majority of interests is identical with the value which popular opinion attaches to it." Thus, De Vinne argues, "the moral undertones" of the essential attributes discussed above become apparent, and "through the evolved algebraic reasoning of a species knows as the reasonable person, the common law of negligence turns mores into law." (Emphasis in original.)
What strikes this reader most is the continuing reluctance of the law and jurists to simply recognize that the "evaluative metric of the reasonable person" is mores, as if that were some dirty or even surprising secret! However, De Vinne argues this is not surprising because mores are "unwritten, ... unfixes, unstable, and changing," while modern society wants to "think of textual law as fixed, stable and unchanging."
Besides its direct application to tort law, the concepts of reasonableness and the reasonable person are embedded throughout the law. For hearing examiners and other fact finders, these concepts also frequently play a significant role in making credibility determinations, and ultimate findings regarding reactions and intentions. Personally, I found De Vinne's piece to be an especially useful reminder to to use caution in making "reasonableness" determinations, to ensure I am not substituting pure personal preferences and perspectives for broader social mores, which are perhaps better reflected by a body such as the jury or a fact finding panel. In the last year, I have volunteered on a number of medical malpractice review panels, and I am increasingly aware how different, and richer, my deliberation and decision making is in this communal body than when I am serving as a solitary fact finder.
Reading De Vinne's article, I suspect it is the difference of plugging into and/or hashing out the social mores of the context, rather than engaging in the solitary intellectual Posnerian exercise of simply identifying the PL>B.
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