Tuesday, October 18, 2022
Ken Simons has posted to SSRN The Hegemony of the Reasonable Person in Anglo-American Tort Law. The abstract provides:
Tort law has increasingly employed the rubric of the reasonable person in a variety of doctrinal domains. Many jurisdictions have rejected a differentiation of landowner duties according to the status of the entrant as trespasser, licensee, or invitee, and substituted a ‘reasonable person’ test. Assumption of risk has been eliminated or greatly narrowed in favor of comparative fault, which asks simply whether the plaintiff failed to act as a reasonable person. The reasonable person plays a significant role even in intentional torts: apparent consent precludes liability when the defendant reasonably (though mistakenly) believes that plaintiff consented; putative self-defense precludes liability when the defendant reasonably (though mistakenly) believes facts that would establish that privilege; and offensive battery requires that the contact be offensive to a ‘reasonable’ sense of dignity. What explains this widespread use of ‘reasonable person’ tests? A desire for simplicity? The normative appeal of such a standard? Normative modesty about adopting a more controversial standard or about specifying more detailed rules? A concern to empower juries? Inertia or lazy thinking? Are such tests mainly descriptive (of ordinary conduct) or mainly idealized and prescriptive? In answering these questions, this paper argues that the hegemony of the reasonable person is sometimes a welcome but often an unwelcome development.