Demystifying the Enigma: The Reasonable Person Standard in Tort

Abstract

Social life is inherently risky. Who should pay for the trillions of dollars of accident costs in the United States alone? Recently, Senator Mitch McConnell has predicted an avalanche of lawsuits from COVID-19 related harms due to alleged negligent safety protocols that businesses adopted. Jury deliberation on such will be challenging given the haphazard and sometimes incorrect guidance from health officials. At trial, the judge instructs the jury to decide whether the defendant’s conduct fell below what a reasonably prudent person would have done in the defendant’s circumstances. Since judges do not provide any further direction on that issue, juries have wide discretion in comparing a defendant’s conduct with the enigmatic reasonably prudent person. Such discretion opens the door wide for the legal system to treat litigants differently even though their cases are alike in all relevant ways. Such is the quintessential form of injustice. Additionally, the jury can easily ignore, or fail to give due consideration to, society’s diverse and competing values and ways of life. Doing so privileges some individuals to the unjust detriment of others. Therefore, fundamental injustice may pervade how the United States legal system resolves disputes over who should pay for accident costs. Those forms of injustice are not adequately addressed in tort law doctrine, the Restatements of Torts, and the most prominent theories of accident law. Those theories are based on, and grapple with, two of the major traditions of legal and political thought dating back to the ancient Greeks. Informing jury adjudication with those foundational ideas points to a new under-standing of the reasonable person standard to better guide juries and judges toward more just outcomes in actual disputes as well as to changes in “black letter” law.