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

Seminar/Forum

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

Room 920, Level 9
Law 106
185 Pelham Street

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T: +61 3 8344 9480

law-obligations@unimelb.edu.au

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?

Presenter

  • Professor Ken Simons