Torts Notes - The Reasonable Person

The most common basis for tort liability is negligent conduct.

A claim for negligence is a tort with 4 basic elements
1.  a duty of reasonable care
2.  breach of that duty
3.  causation
4.  resulting damages

A plaintiff must prove all four of these elements to recover on a claim for negligence.

Negligence is the omission to do something that a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.

It is possible in a general way to describe the factors that a reasonable person considers before acting.

A reasonable person considers the foreseeable risks of injury that the conduct will impose on the community.

The reasonable person considers the extent of the risks posed by her conduct.

the reasonable person considers the likelihood of a risk actually causing harm.

considers whether alternatives to the proposed conduct would achieve the same purpose with lesser or greater risk.

considers the costs of various courses of action in determining what is reasonable

The hand formula is a function of three variables: 
1.  the probability that an incident will occur
2.  the gravity of the resulting injury if it does
3.  the burden of adequate preparations

The hand test is whether the burden is less than gravity times probability

The reasonable person takes a precaution against injury if the burden of doing so is less than the loss if the injury occurs multiplied by the probability that the injury will occur.

In cases where the precautions to eliminate a risk are too expensive, the only reasonable choice may be to forego the conduct entirely.

Juries are not instructed in strict hand formula terms.

One's duty is to act as a reasonable person under the circumstances.  Some individual characteristics of the actor are considered part of "the circumstances" in determining reasonableness.

No allowance is made for the circumstance that a person lacks good judgement, is hasty, awkward or perennially oafish.

The traditional rule, still generally accepted, is that the mentally ill are held to the same standard as everyone else, despite the circumstances of their illness.

Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.

Since the law will not hold you to a lesser standard, you will have to curtail  your activity or exercise particular self-restraing (or be restrained by others) to avoid liability.

Children are not are not held to the adult standard of care, but rather the standard of a reasonable person of like age, intelligence and experience under like circumstances.

Children have to learn to be careful and ought not be exposed to tort liability for conduct that is reasonable in light of their stage of development during the learning process.

The external circumstances under which an actor acted are always relevant.

The fact that conduct is generally engaged in by those in a particular trade or profession at least suggests that such conduct is acceptable.

However, evidence of custom is not dispositive.

Another circumstance is whether a statute requires a particular course of action under the circumstances. 

Evidence that the defendant ignored a statuatory standard will frequently suffice to establish that he was negligent.

People with specialized knowledge are not held to a higher standard of care.  Their standard like that of others, is reasonable care under the circumstances.  But the fact that an actor is a professional or assumes the role of an expert in an activity is a circumstance that colors the meaning of reasonableness.  A professional will be expected to possess and emply the skill and knowledge of her profession, not of the "ordinarily reasonable person".

The test is not whether an injury occurred, or even whether injury was foreseeable, but whether the defendant's conduct was reasonable in view of all the circumstances, including the possibility of injury, the utility of the conduct, the alternatives available and others.

Actors are not required to eliminate all risk of injury from their activities.  Only to conduct them with reasonable care.

Under strict liability, an actor who causes harm pays the resulting damages even if he acted with due care.

Evidence of custom, what is usually done in a trade or profession, is admissable at trial.  the jury is allowed to hear such evidence.  However, they still must determine whether what was done, customary or not, comports with the negligence standard itself, ordinary care under the circumstances.

liability for negligence turns not just on being negligent, but upon negligent conduct causing injury.