Schechter's A Short and Happy Guide to Torts (Short and Happy Series) by Roger Schechter
Author:Roger Schechter [Schechter, Roger]
Language: eng
Format: azw3
ISBN: 9781628107104
Publisher: West Academic
Published: 2012-05-09T16:00:00+00:00
5. Assessing Reasonableness By Appealing to Jury Intuition
In many cases the assessment of reasonableness is simply left to the jury’s common sense and experience. Once they resolve any 93
factual disputes and determine how the defendant behaved, they use their intuition to decide if that behavior was excessively risky, or whether the defendant acted reasonably. This allows the negligence system to reflect community values and to take into account all the myriad subtle differences in the facts that can lead to an accident. It also means, however, that the cases can be wildly inconsistent since different juries may come to different conclusions about the breach question in cases with very similar facts.
Plaintiffs in cases of this type sometimes argue to the jury that the risk of an injury like the one which occurred was highly foreseeable under the circumstances, and therefore that a reasonable person would have been more careful than the defendant. One might expect to hear this kind of argument in a case where defendant was driving home at 45 miles an hour on a snowy evening, the plaintiff’s point being that defendant should have been driving more slowly. This is merely a soft form of arguing about the “P” term in Hand’s famous formula—it is a claim that because the probability of harm was very high, absent the precaution of slower driving, a failure to take that precaution should be considered unreasonable.
Another common argument in these more intuitive kinds of cases is the defendant’s claim that the plaintiff was capable of protecting himself from harm. The defendant’s point is that if plaintiff could protect himself, it was not unreasonable for the defendant to omit additional precautions. In one federal case from Illinois, a truck driver was in a field to pick up a load of corn that was being discharged from a harvesting machine. The machine in question was apparently very large and made very loud noises when it was operating. The truck driver was so captivated by the spectacle of corn streaming into the bed of his truck that he stepped into the still moving harvesting blades and sustained quite terrible injuries. He alleged that the man operating 94
the harvester was negligent in not turning off the machine. The trial court directed a verdict for the defendant and the appellate court affirmed. They reasoned that the danger was so obvious, given the visibility and noise of the machine, that the defendant was reasonable in assuming that plaintiff would simply avoid the danger. That meant that there was no breach of duty by the operator in failing to turn off the machine. Again, this is a casual argument about the “P” term in Hand’s formula, this time claiming that the risk of harm was quite low, because the plaintiff could have protected himself.
Academic writers and law professors who teach torts do not spend a lot of time on the idea of reasonableness as an appeal to jury intuition. That is because there is not much to say about it.
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