Negligence happens when a person does one of two things:
- Fails to do something that a reasonable person would do, guided upon those considerations which ordinarily regulate the conduct of human affairs; or
- Does something that reasonable person would not do.
Common law evolves slowly. The reasonable man concept is burned into legal history. However, we’ll call him or her the reasonable person.
A person causing injury faces liability if they either fail to do that which a reasonable person would have done, or do something that a person taking reasonable precautions would not have done. This defines basic negligence law.
Theoretically, then, there is a uniform standard, that of the “reasonable person” against which all human conduct is judged in determining negligence. It does not matter if the person being judged is not a brain surgeon. We all go out into the same world each day. We are all judged – theoretically and legally – by the same standard. The standard is that of a reasonably intelligent person “who makes prudence a guide to his/her conduct.”
Individual courts and jurors are not to superimpose their own personal standards on a given case. The correct standard measuring whether a person’s conduct rises to the level of negligence is that of the reasonable person.
So, when negligence cases go before a jury, the judge does not instruct the jurors to ask themselves if “they would have acted differently”. People often tell me “Well, what I would have done is”. That’s irrelevant. Instead, standard jury instructions ask “how would the reasonable person have acted.”
Unfortunately there is no one person who can be dragged off the street modeling as “the reasonable person” to whom the jurors can submit facts and get a clear answer. This is why the U.S. Constitution establishes the right to a jury of one’s “peers” to listen to the facts, and to deliberate whether the defendant acted as the theoretical reasonable person.
The great U.S. Supreme Court Judge Potter Stewart proclaimed, about a different subject “I know it when I see it”. So, allowing a jury of people in the community to decide whether the reasonable person standard has been breached in any given case is the legal system that we have. Jurors are expected to know negligence when they see it.
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