The Hegemony of the Reasonable Person in Anglo-American Tort Law

Presented by Professor Ken Simons, University of California, USA

Since the middle of the twentieth century, tort law has increasingly employed the rubric of the reasonable person in a variety of doctrinal domains. Many jurisdictions have rejected a differentiation of landowner duties according to the status of the entrant as trespasser, licensee, or invitee, and substituted a “reasonable person” test. Assumption of risk has been eliminated or greatly narrowed in favor of comparative fault, which asks simply whether the plaintiff failed to act as a reasonable person. The reasonable person plays a significant role even in intentional torts: apparent consent precludes liability when the defendant reasonably (though mistakenly) believes that plaintiff consented; putative self-defense precludes liability when the defendant reasonably (though mistakenly) believes facts that would establish that privilege; and offensive battery requires that the contact be offensive to a “reasonable” sense of dignity. What explains this widespread use of “reasonable person” tests? Judicial sympathy for tort victims? A desire for simplicity? The normative appeal of such a fault standard? A concern to empower juries? Lazy thinking? Is the hegemony of the reasonable person a welcome or unwelcome development?

Professor Simons is a leading scholar of tort law, criminal law, and law and philosophy and co-director of the Center for Legal Philosophy. He has served since 2014 as Chief Reporter for the American Law Institute’s Restatement Third of Torts: Intentional Torts to Persons. In January 2019, he was the recipient of the 2019 William L. Prosser Award by the Association of American Law Schools Section on Torts and Compensation Systems, which recognizes “outstanding contributions of law teachers in scholarship, teaching and service” related to tort law and compensation systems. Professor Simons has published influential scholarship concerning consent, assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. He has also explored such topics as bias crimes, corrective justice, the logic of egalitarian norms, mistake and impossibility in criminal law, and strict criminal liability. Before joining UC Irvine School of Law, Professor Simons was Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law. He was a law clerk to U.S. Supreme Court Justice Thurgood Marshall and to Judge James L. Oakes, U.S. Court of Appeals for the Second Circuit. Professor Simons also worked as an associate at Goodwin, Procter & Hoar in Boston, in the field of civil litigation. He received his J.D. from Michigan Law School, magna cum laude, and graduated from Yale University, summa cum laude, with a B.A. in philosophy.