[Note: This posting is a continuation of a report on
the development of a civics unit of study.
This unit is directing students to formulate informed positions on a
governmental topic: ground rules
overseeing tort law. It is being
developed in real time. Writer wants to
identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
To this point in this
blog’s review of tort law, one lesson drawn is that liability from any tort
claim arises from one being found guilty of negligence. One does not need to help someone else, no
matter how serious the danger. This no-duty
principle applies when there is no special relationship such as one defined by
a contract or familial connection or some special inherent responsibility –
like an innkeeper-guest or life guard-swimmer or teacher-student relationship.
This blog has characterized this no-duty
element as the indifference element or principle. It betrays a tension within the nation’s
legal system and it is the product of this system’s reliance on common law when
it comes to tort claims. Now the blog
will shift its focus to what constitutes negligence and one of its main concepts
is that of reasonableness. That is,
negligence occurs when a person fails to be reasonable in a given situation and
harm results to some victim.
Consequently, the preeminent question
becomes: was the harm the result of someone acting unreasonably? So, central to this question is another
question: what is being reasonable? When one sets about to answer this latter
question, one quickly can see that everyone is apt to being unreasonable from
time to time. The reasonable person – as
a defining attribute – is a mythical person.
The reasonable person surely is not the average person as one can
readily or regularly observe oneself or others acting unreasonably.
Like how, for example? One over-pours some liquid ingredient in
following a recipe. Or one veers one’s
car beyond the highway’s outer lines.
Now, if one does one these things and it results in harm to someone
else, the person can be successfully sued, and the claim would be that that
unreasonable behavior resulted in or caused the harm. If the court agrees, then that person can be held
liable to making the victim whole.
Usually, that would be in the form of a monetary award. If serious enough, a punitive award can also
be levied.
The list of potential unreasonable
behaviors is endless. They can range
from being absent-minded while walking down the street to misinterpreting
visual sights on that same street. Take
this example:
a
driver drives his car to a traffic-lighted intersection and to the right, at
the corner, there is a bicyclist standing waiting for the light to turn green
to cross the street. The driver wants to
turn right and is concerned over what the bicyclist is going do.
The
driver turns his head left and sees that in two of the on-coming lanes of a
multi-lane street, two cars stop indicating in the driver’s mind their light has
turned red. That means his way is free to
turn right on red and wanting to do so before the bicyclist gets that green
light, launches forward only to be hit by an oncoming car. What happened?
The
car driver misinterpreted the stopping cars; they were in turning lanes and
their stopping was due to the turning lanes having a red light while the rest
the lanes still had a green light. The
first driver misinterpreted – probably due to that person’s distraction over
the bicyclist – and was negligent in terms of the ensuing accident.
Negligent people are
not bad people, immoral people, or hateful people; they are just negligent
people. Some are negligent more often
than others. Some are that way because
they are young and impulsive; some because they are old and are more apt to
being absent-minded.
An insightful quote one can think of
is offered by Justice Oliver Wendell Holmes,
If
… a man is born hasty and awkward, is always having accidents and hurting
himself or his neighbors, no doubt his congenital defects will be allowed for
in the courts of heaven but his slips are no less troublesome to his neighbors
then if it sprang from guilty neglect.[2]
One can substitute the
term, “intentional negligence,” for guilty neglect. The point is, when it comes to most tort
cases, intentions do not protect defendants.
And in making this point, one is open
to establishing objective standards; at least that is the goal of courts. One is not concerned with how nice a person
is or other subjective judgements.
Instead, one applies the reasonable standard – what a reasonable person
would do – to determine the duty of care one person should have for another.
This
allows jurors or judges a more attainable objective, the external facts of a
case, to determine the outcome and not the subjective feelings of those
involved, particularly the defendant, or what was otherwise occurring in any of
the subjects’ minds. In other words, the
salient factors of the case are external, not internal like feelings (“I don’t
want to hurt a bicyclist”) or beliefs (“the oncoming cars have a red light”).
The courts have made some allowances
for individual attributes that steers away from a totally objective view for
everyone. This leads to some complicated
matters. There might be physical elements
of the person’s condition at a given time – say he/she suffers a seizure just
before plowing a car into someone else’s car.
Or it can be an ongoing condition, like blindness.
Again,
reasonableness is looked for; is this the first seizure, for example, or one of
many? If the latter, has the person
taken reasonable precautions to avoid inflicting harm – like giving up driving? And not all debilitating conditions are
equally seen as legitimate. For example,
courts have not been lenient with mental disabilities (like personality disorders)
as with physical disabilities. This has
been somewhat controversial.
Of
course, there are certain distinguishing attributes that place a higher burden
on a defendant. The most obvious is
expertise. A doctor is held to a higher
level of responsibilities in administering medical service while a layperson –
say, trying to assist a person suffering a medical emergency – is given more
leeway in what he/she does in terms of providing aid.
Another
moderating factor is age. Apparently,
courts have been more lenient with young aged subjects than older subjects –
differences being more standard (a three-year-old, by and large, acts like a three-year-old). There is a vast level of divergence among those
who are eighty and above in their behavior or mental capacities.
And
lastly, in trying to handle this business of negligence and reasonableness,
there have been those who have attempted to apply economic insights: does the costs of being reasonable outweigh
the costs of not being so? There has
been a general trend among some to apply economic thinking to various social
issues and this is one of them. Here,
this only deserves a mention, but the reader should know, as with other aspects
of tort law, controversy is easily aroused with such thinking and arguing.
Hopefully,
the reader can readily see how application of “reasonableness” can and does
affect claims of negligence. In the next
posting, the writer will provide some ideas on how such a connection –
reasonableness with negligence and causation – has developed some standards of
care. This will be addressed before this
history delves directly into causation.
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