Reasonable person
Encyclopedia
The reasonable person (historically reasonable man) is a legal fiction
of the common law
that represents an objective standard against which any individual's conduct can be measured. It is used to determine if a breach of the standard of care
has occurred, provided a duty of care
can be proven.
The reasonable person standard holds: each person owes a duty to behave as a reasonable person would under the same or similar circumstances. While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself.
This standard performs a crucial role in determining negligence in both criminal law
—that is, criminal negligence
—and tort
law. The standard also has a presence in contract
law, though its use there is substantially different. The standard does not exist independently of other circumstances within a case that could affect an individual's judgment.
(1837). In Menlove, the defendant
had stacked hay on his rental property in a manner prone to spontaneous ignition. After he had been repeatedly warned over the course of five weeks, the hay ignited and burned the defendant's barns and stable, and then spread to the landlord's two cottages on the adjacent property. Menlove's attorney
admitted his client's "misfortune of not possessing the highest order of intelligence," arguing that negligence should only be found if the jury decided Menlove had not acted with "bona fide
[and] to the best of his [own] judgment."
The Menlove court disagreed, reasoning that such a standard would be too subjective, instead preferring to set an objective standard by which to adjudicate cases:
English
courts upheld the standard again nearly 20 years later in Blyth v. Company Proprietors of the Birmingham Water Works, holding:
jurist
Oliver Wendell Holmes, Jr.
explained the theory behind the reasonable person standard as stemming from the impossibility of "measuring a man's powers and limitations." Individual, personal quirks inadvertently injuring the persons or property of others are no less damaging than intentional acts. For society to function, "a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare." Thus, a reasonable application of the law is sought, compatible with planning, working, or getting along with others. As such, "his neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account."
The reasonable person standard is by no means democratic in its scope; it is, contrary to popular conception, intentionally distinct from that of the "average person," who is not necessarily guaranteed to always be reasonable. The reasonable person will weigh all of the following factors before acting:
Taking such actions requires the reasonable person to be appropriately informed, capable, aware of the law, and fair-minded. Such a person might do something extraordinary in certain circumstances, but whatever that person does or thinks, it is always reasonable.
The reasonable person has been called an "excellent but odious character."
English legal scholar Percy Henry Winfield summarized much of the literature by observing that:
common law, a well known—though nonbinding—test for determining how a reasonable person might weigh the criteria listed above was set down in United States v. Carroll Towing Co.
by the Chief Justice of the Second Circuit Court, Learned Hand
. The case concerned a barge
that had broken her mooring with the dock. Writing for the court, Hand held:
While the test offered by Hand does not encompass all the criteria available above, juries
in a negligence case might well still be instructed to take the other factors into consideration in determining whether the defendant
was negligent.
of the reasonable person represents the ideal human actor, one would be hard pressed to characterize any individual human as meeting the standard, whether in whole or in part, all of the time. Since some human actors have limitations, the standard only requires that people act similarly to how "a reasonable person under the circumstance" would, as if their limitations were themselves circumstances. As such, courts require that the reasonable person be viewed as experiencing the same limitations as the defendant.
For example, the standard to which a disabled defendant would be held is by necessity how a reasonable person with that same disability would act. One should not mistake this allowance for physical limitations as an allowance for poor judgment, attempting acts beyond one's abilities, or acting too quickly, etc. Were such allowances made for every defendant, there would be as many different standards for negligence as there were defendants; and courts would spend innumerable hours, and the parties much more money, on determining that particular defendant's reasonableness, character, and intelligence.
By using the reasonable person standard, the courts instead use an objective tool and avoid such subjective evaluations. The result is a standard that allows the law to behave in a uniform, foreseeable, and neutral manner when attempting to determine liability.
One of the exceptions to these allowances concern children engaged in what is primarily considered to be high-risk adult activity, such as operating a motor vehicle. Children can also be "tried as an adult" for serious crimes, such as murder
, which causes the court to disregard the defendant's age.
However, such other relevant factors are never dispositive. Some professions may maintain a custom or practice long after a better method has become available. The new practices, though less risky, may be entirely ignored. In such cases, the practitioner may very well have acted unreasonably despite following custom or general practices.
However, controversial medical practices can be deemed reasonable when followed by a respected and reputable minority of the medical field, or where the medical profession cannot agree over which practices are best.
While community customs may be relied upon to indicate what kind of action is expected in light of given circumstances, such customary requirements are not themselves conclusive of what a reasonable person would do.
It is precisely for this wide-ranging variety of possible facts that the reasonable person standard is so broad (and often confusing and difficult to apply). Although, a few general areas of relevant circumstances rise above the others.
from affecting the trier of fact
. Given pressing circumstances, a reasonable person may not always act in a manner similar to how she would have acted in a more relaxed setting. As such, it is only fair that actions be judged in light of any exigent conditions that could have affected how the defendant acted.
addresses the circumstances under which the law of negligence can become an implied cause of action
for breaching a statutory standard of care. Conversely, minimal compliance with a safety statute does not always absolve a defendant if the trier of fact determines that the reasonable person should have taken actions beyond and in excess of what the statute required. However, if the trier of fact finds the statute's standard itself is reasonable and the defendant acted in accordance with what the statute contemplated, the duty of care can be deemed met.
jurisdictions. The test stems from attempts to balance the competing interests of the judicial policies of assent and of reliability. The former holds that no person ought to be contractually obligated if they did not consent to such an agreement; the latter holds that if no person can rely on actions or words demonstrating consent, then the whole system of commercial exchange will ultimately collapse.
Prior to the 19th century, courts used a test of subjective evalutation; that is, the trier of fact determined each party's understanding. If both parties were of the same mind and understanding
on matters, then assent was manifested and the contract was valid. Between the 19th and 20th centuries, the courts shifted toward the objectivist test, reasoning that subjective testimony was often unreliable and self-serving.
From those opposite principles, modern law has found its way to a rough middle ground, though it still shows a strong bias toward the objective test. Promises and agreements are reached through manifestations of consent, and parties are liable for actions that deliberately manifest such consent; however, evidence of either party's state of mind can be used to determine the context of the manifestation if said evidence is reliable and compatible with the manifestation in question, though such evidence is typically given very little weight.
Another circumstance where the reasonable bystander test is used occurs when one party has inadvertently misstated the terms of the contract, and the other party sues to enforce those terms: if it would have been clear to a reasonable bystander that a mistake had been made, then the contract is voidable
by the party who made the error; otherwise, the contact is binding.
law as the reasonable woman standard. The variation recognizes a difference between men and women regarding the effect of unwanted interaction with a sexual tone. As women have historically been more vulnerable to rape
and sex-related violence than have men, courts believe that the proper perspective for evaluating a claim of sexual harassment is that of the reasonable woman.
considered the concept of the reasonable man at length in the fictional case of "Fardell v. Potts." In Herbert's fictional account, the judge addressed the lack of a reasonable woman standard in the common law, and ultimately concluded that "a reasonable woman does not exist."
, the standard of reasonable care, for example by a trustee or guardian, was that of the pater familias
or the bonus pater familias ("good father of a family"). In French law, this is rendered as the bon père de famille, an expression also used in Quebec until it was superseded by the common-law influenced personne raisonnable. In Portuguese and Portugal-related legal systems
, the standard is the bom pai de família.
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
that represents an objective standard against which any individual's conduct can be measured. It is used to determine if a breach of the standard of care
Standard of care
In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care.The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually...
has occurred, provided a duty of care
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
can be proven.
The reasonable person standard holds: each person owes a duty to behave as a reasonable person would under the same or similar circumstances. While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself.
This standard performs a crucial role in determining negligence in both criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
—that is, criminal negligence
Criminal negligence
In the criminal law, criminal negligence is one of the three general classes of mens rea element required to constitute a conventional as opposed to strict liability offense. It is defined as an act that is:-Concept:...
—and tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
law. The standard also has a presence in contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
law, though its use there is substantially different. The standard does not exist independently of other circumstances within a case that could affect an individual's judgment.
History
The first appearance of the reasonable person standard was in the English case of Vaughan v. MenloveVaughan v. Menlove
Vaughan v Menlove 132 ER 490 is a seminal English tort law case that first introduced the concept of the reasonable person in law.-Facts:...
(1837). In Menlove, the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
had stacked hay on his rental property in a manner prone to spontaneous ignition. After he had been repeatedly warned over the course of five weeks, the hay ignited and burned the defendant's barns and stable, and then spread to the landlord's two cottages on the adjacent property. Menlove's attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
admitted his client's "misfortune of not possessing the highest order of intelligence," arguing that negligence should only be found if the jury decided Menlove had not acted with "bona fide
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
[and] to the best of his [own] judgment."
The Menlove court disagreed, reasoning that such a standard would be too subjective, instead preferring to set an objective standard by which to adjudicate cases:
English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
courts upheld the standard again nearly 20 years later in Blyth v. Company Proprietors of the Birmingham Water Works, holding:
Rationale
AmericanUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
explained the theory behind the reasonable person standard as stemming from the impossibility of "measuring a man's powers and limitations." Individual, personal quirks inadvertently injuring the persons or property of others are no less damaging than intentional acts. For society to function, "a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare." Thus, a reasonable application of the law is sought, compatible with planning, working, or getting along with others. As such, "his neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account."
The reasonable person standard is by no means democratic in its scope; it is, contrary to popular conception, intentionally distinct from that of the "average person," who is not necessarily guaranteed to always be reasonable. The reasonable person will weigh all of the following factors before acting:
- the foreseeable risk of harm his actions create versus the utility of his actions;
- the extent of the risk so created;
- the likelihood such risk will actually cause harm to others;
- any alternatives of lesser risk, and the costs of those alternatives.
Taking such actions requires the reasonable person to be appropriately informed, capable, aware of the law, and fair-minded. Such a person might do something extraordinary in certain circumstances, but whatever that person does or thinks, it is always reasonable.
The reasonable person has been called an "excellent but odious character."
English legal scholar Percy Henry Winfield summarized much of the literature by observing that:
Hand Rule
Under AmericanUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
common law, a well known—though nonbinding—test for determining how a reasonable person might weigh the criteria listed above was set down in United States v. Carroll Towing Co.
United States v. Carroll Towing Co.
United States v. Carroll Towing Co. 159 F.2d 169 is a decision from the 2nd Circuit Court of Appeals that proposed a test to determine the standard of care for the tort of negligence...
by the Chief Justice of the Second Circuit Court, Learned Hand
Learned Hand
Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...
. The case concerned a barge
Barge
A barge is a flat-bottomed boat, built mainly for river and canal transport of heavy goods. Some barges are not self-propelled and need to be towed by tugboats or pushed by towboats...
that had broken her mooring with the dock. Writing for the court, Hand held:
While the test offered by Hand does not encompass all the criteria available above, juries
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
in a negligence case might well still be instructed to take the other factors into consideration in determining whether the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
was negligent.
Personal circumstances
While the legal fictionLegal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
of the reasonable person represents the ideal human actor, one would be hard pressed to characterize any individual human as meeting the standard, whether in whole or in part, all of the time. Since some human actors have limitations, the standard only requires that people act similarly to how "a reasonable person under the circumstance" would, as if their limitations were themselves circumstances. As such, courts require that the reasonable person be viewed as experiencing the same limitations as the defendant.
For example, the standard to which a disabled defendant would be held is by necessity how a reasonable person with that same disability would act. One should not mistake this allowance for physical limitations as an allowance for poor judgment, attempting acts beyond one's abilities, or acting too quickly, etc. Were such allowances made for every defendant, there would be as many different standards for negligence as there were defendants; and courts would spend innumerable hours, and the parties much more money, on determining that particular defendant's reasonableness, character, and intelligence.
By using the reasonable person standard, the courts instead use an objective tool and avoid such subjective evaluations. The result is a standard that allows the law to behave in a uniform, foreseeable, and neutral manner when attempting to determine liability.
Children
One broad allowance made to the reasonable person standard is for children. The standard here requires that a child act in a similar manner to how a "reasonable person of like age, intelligence, and experience under like circumstances" would act. In many common law systems, children under the age of 6 or 7 are typically exempt from any liability, whether civil or criminal, as they are deemed to be unable to understand the risk involved in their actions. Children of ages 7 to 17 are held to a reasonable person standard that factors in the criteria above. Although these allowances are made for children, they can still act, and are sometimes found to have acted, in a negligent manner.One of the exceptions to these allowances concern children engaged in what is primarily considered to be high-risk adult activity, such as operating a motor vehicle. Children can also be "tried as an adult" for serious crimes, such as murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, which causes the court to disregard the defendant's age.
Mentally ill
The reasonable person standard makes no allowance for the mentally ill. Such a refusal goes back to the standard set in Menlove, where Menlove's attorney argued for the subjective standard. In the 170 years since, the law has kept to the legal judgment of having only the single, objective standard. Such judicial adherence sends a message that the mentally ill would do better to refrain from taking risk-creating actions, unless they exercise a heightened degree of self-restraint and precaution, if they intend to avoid liability.Professionals
In cases where a human actor utilizes a professional skill set, the "reasonable person under the circumstances" test becomes elevated to a standard of whether the person acted how a "reasonable professional under the circumstances" would have, without regard to whether that actor is actually a professional, and further without regard to the degree of training or experience of that particular actor. Other factors also become relevant, such as the degree to which the professional is educated (i.e., whether a specialist within the specific field, or just a general practitioner of the trade), and customary practices and general procedures of similar professionals.However, such other relevant factors are never dispositive. Some professions may maintain a custom or practice long after a better method has become available. The new practices, though less risky, may be entirely ignored. In such cases, the practitioner may very well have acted unreasonably despite following custom or general practices.
Medical professionals
In the realm of healthcare, plaintiffs must prove via expert testimony the standard of medical care owed and a departure from that standard. The only exception to the requirement of expert testimony is where the departure from accepted medical practices was so egregious that a layperson can readily recognize the departure.However, controversial medical practices can be deemed reasonable when followed by a respected and reputable minority of the medical field, or where the medical profession cannot agree over which practices are best.
Armed professionals
The "reasonable officer" standard is a method often applied to law enforcement and other armed professions to help determine if a use of force was correctly applied. The test is usually applied to whether the level of force used was excessive or not. If an appropriately trained professional, knowing what the subject of the investigation knew at the time and following their agency guidelines (such as a force continuum), would have used the same level of force or higher, then the standard is met. If the level of response is determined to be justified, the quantity of force used is usually presumed to have been necessary unless there are additional factors. For example, should it be determined that a trained police officer was justified in using deadly force against a suspect, the number of times he fired is presumed to have been necessary to stop the suspect's action that justified use of deadly force, as long as there aren't other factors such as a reckless disregard of other officers' or bystanders' safety, or it is clearly proven that additional force was used after the suspect was no longer a threat.Inexperience
When any person undertakes a skills-based activity that creates a risk to others, they are held to the minimum standard of how a reasonable person experienced in that task would act, regardless of their actual level of experience.External circumstances
Factors external to the defendant are always relevant. Additionally, so is the context within which each action is made. It is within these circumstances that the determinations and actions of the defendant are to be judged. There are myriad factors that could provide inputs into how a person acts: individual perceptions, knowledge, the weather, etc. The standard of care required for each set of circumstances will vary, yet the level of care due is always what is reasonable for that set of circumstances.While community customs may be relied upon to indicate what kind of action is expected in light of given circumstances, such customary requirements are not themselves conclusive of what a reasonable person would do.
It is precisely for this wide-ranging variety of possible facts that the reasonable person standard is so broad (and often confusing and difficult to apply). Although, a few general areas of relevant circumstances rise above the others.
Emergency doctrine
Allowing for circumstances under which a person must act urgently is important to preventing hindsight biasHindsight bias
Hindsight bias, or alternatively the knew-it-all-along effect and creeping determinism, is the inclination to see events that have already occurred as being more predictable than they were before they took place. It is a multifaceted phenomenon that can affect different stages of designs,...
from affecting the trier of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...
. Given pressing circumstances, a reasonable person may not always act in a manner similar to how she would have acted in a more relaxed setting. As such, it is only fair that actions be judged in light of any exigent conditions that could have affected how the defendant acted.
Available resources
In certain circumstances, human actors are faced with the problem of making do only with what is available. Such circumstances are relevant to any determination of whether the defendant acted reasonably. Where necessary resources are scarce, certain actions may be reasonable that would be unreasonable if those same resources were available and either readily at hand or realistically obtainable given other circumstances.Negligence per se
Because a reasonable person is objectively presumed to know the law, noncompliance with a local safety statute may also constitute negligence. The related doctrine of negligence per seNegligence per se
Negligence per se is the legal doctrine whereby an act is considered negligent because it violates a statute . In order to prove negligence per se, the plaintiff must show that# the defendant violated the statute,...
addresses the circumstances under which the law of negligence can become an implied cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
for breaching a statutory standard of care. Conversely, minimal compliance with a safety statute does not always absolve a defendant if the trier of fact determines that the reasonable person should have taken actions beyond and in excess of what the statute required. However, if the trier of fact finds the statute's standard itself is reasonable and the defendant acted in accordance with what the statute contemplated, the duty of care can be deemed met.
Reasonable bystander
For common law contracts, disputes over contract formation are subjected to what is known as the objective test of assent in order to determine whether a contract exists. This standard is also known as the reasonable bystander, reasonable third party, or reasonable person in the position of the party. This is in contrast to the subjective test employed in most civil lawCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurisdictions. The test stems from attempts to balance the competing interests of the judicial policies of assent and of reliability. The former holds that no person ought to be contractually obligated if they did not consent to such an agreement; the latter holds that if no person can rely on actions or words demonstrating consent, then the whole system of commercial exchange will ultimately collapse.
Prior to the 19th century, courts used a test of subjective evalutation; that is, the trier of fact determined each party's understanding. If both parties were of the same mind and understanding
Meeting of the minds
Meeting of the minds is a phrase in contract law used to describe the intentions of the parties forming the contract. In particular it refers to the situation where there is a common understanding in the formation of the contract...
on matters, then assent was manifested and the contract was valid. Between the 19th and 20th centuries, the courts shifted toward the objectivist test, reasoning that subjective testimony was often unreliable and self-serving.
From those opposite principles, modern law has found its way to a rough middle ground, though it still shows a strong bias toward the objective test. Promises and agreements are reached through manifestations of consent, and parties are liable for actions that deliberately manifest such consent; however, evidence of either party's state of mind can be used to determine the context of the manifestation if said evidence is reliable and compatible with the manifestation in question, though such evidence is typically given very little weight.
Another circumstance where the reasonable bystander test is used occurs when one party has inadvertently misstated the terms of the contract, and the other party sues to enforce those terms: if it would have been clear to a reasonable bystander that a mistake had been made, then the contract is voidable
Voidable
In law, a transaction or action which is voidable is valid, but may be annulled by one of the parties to the transaction. Voidable is usually used in distinction to void ab initio and unenforceable....
by the party who made the error; otherwise, the contact is binding.
Sexual harassment
A variant of the reasonable person can be found in sexual harassmentSexual harassment
Sexual harassment, is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In some contexts or circumstances, sexual harassment is illegal. It includes a range of behavior from seemingly mild transgressions and...
law as the reasonable woman standard. The variation recognizes a difference between men and women regarding the effect of unwanted interaction with a sexual tone. As women have historically been more vulnerable to rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
and sex-related violence than have men, courts believe that the proper perspective for evaluating a claim of sexual harassment is that of the reasonable woman.
Satire
Though the use of the reasonable woman standard has gained traction in some areas of the law, the standard has not escaped the crosshairs of humorists. In 1924, legal humorist A. P. HerbertA. P. Herbert
Sir Alan Patrick Herbert, CH was an English humorist, novelist, playwright and law reform activist...
considered the concept of the reasonable man at length in the fictional case of "Fardell v. Potts." In Herbert's fictional account, the judge addressed the lack of a reasonable woman standard in the common law, and ultimately concluded that "a reasonable woman does not exist."
Equivalents outside of common law systems
In Roman lawRoman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, the standard of reasonable care, for example by a trustee or guardian, was that of the pater familias
Pater familias
The pater familias, also written as paterfamilias was the head of a Roman family. The term is Latin for "father of the family" or the "owner of the family estate". The form is irregular and archaic in Latin, preserving the old genitive ending in -as...
or the bonus pater familias ("good father of a family"). In French law, this is rendered as the bon père de famille, an expression also used in Quebec until it was superseded by the common-law influenced personne raisonnable. In Portuguese and Portugal-related legal systems
Law of Portugal
The Law of Portugal is the legal system that applies in Portugal. The Portuguese legal system is a civil law or continental legal system, based on Roman law...
, the standard is the bom pai de família.
Qualifications
Very often, for instance, in the case of noise ordinances, the enforcement of the law is only for the purpose of protecting the right of a reasonable person of normal sensitivity.See also
- Beyond a reasonable doubtBeyond a Reasonable DoubtBeyond a Reasonable Doubt is a 1956 film directed by Fritz Lang and written by Douglas Morrow. The film, considered film noir, was the last American film directed by Lang.-Plot:...
- CasuistryCasuistryIn applied ethics, casuistry is case-based reasoning. Casuistry is used in juridical and ethical discussions of law and ethics, and often is a critique of principle- or rule-based reasoning...
- ContractContractA contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
- Gender discrimination
- Man on the Bondi tramMan on the Bondi TramThe Man on the Bondi Tram is a fictional legal character used in civil law in New South Wales, representing an ordinary person. Jurors, for example, have been directed to consider what the man on the Bondi tram would think of whether a statement is defamatory...
- Man on the Clapham omnibus/Man on the Shaukiwan tram
- Reasonable suspicionReasonable suspicionReasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
- Standard of care in English law
- TortTortA tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s
Sources
- Miller, Alan & Perry, Ronen, The Reasonable Person, New York University Law Review