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Thursday, May 06, 2010

Acting Like a Reasonable Woman

I’m going to (ab)use(?) my stint on PrawfsBlawg to air something that niggles at me every time I make my way through the reasonable personal standard in my Torts course.

The reasonable person standard (previously, the reasonable man standard) indexes liability to whether an individual acted in the manner of a reasonable and prudent person under the same or similar circumstances.  In making this determination, fact finders may consider an actor’s physical disability and any special knowledge or skill possessed by the actor (i.e., use the conduct of a reasonable person with the physical disability or knowledge/skill of the actor as the standard), but may not consider emotional or mental disability (including, for example, stupidity). 

The reasonable person standard was previously the reasonable man standard.  “The reasonably prudent man was invariably described rather vaguely, but always in male terms….In America, the definition – perhaps the most startling of all – was given by courts and commentators as ‘the man who takes the magazines at home and in the evening pushes the lawn mower in his short sleeves.’…In any event, all these people whose attributes seem, in Europe and America, to define reasonableness are unmistakably male….”  Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law 23, 26 (1985). 

A number of scholars have explored the gender implications of the reasonable person standard.  Ellen Bublick observes that , as applied to the contributory negligence of female rape victims in premises liability cases, the reasonable person standard has been interpreted to require that women greatly circumscribe their behavior to avoid attack (for example, by finding them negligent for going out alone after dark).   Ellen M. Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413 (1999).  Margo Schlanger uses old tort cases involving women to compare a universal tort standard to a reasonable woman standard (for a primer on exploring these issues in a Torts course, see her article Gender Matters: Teaching a Reasonable Woman Standard in Personal Injury Law, 45 ST. LOUIS U. L.J. 769 (2001)) and, in doing so, elucidates “a central question for legal feminist theory . . . whether women's equality and welfare is best fostered by insisting on adherence to universal legal standards or on recognition and even privileging of women's difference from men.”  Id.  See also Margo Schlanger, Injured Women Before Common Law Courts, 1860–1930, 21 HARV. WOMEN’S L.J 79 (1998).

My aforementioned niggle relates to the practical application of the universal reasonable person standard.   Imagine that I slip on a poorly maintained step while lifting my suitcase down the stairs to the subway and break my leg.  In my suit against the MTA, the MTA claims that it was negligent for me to attempt to carry the (20 lb.) suitcase down the stairs.  So, to assess my alleged contributory negligence, the fact finder will need to decide whether the act of carrying the suitcase accords with the conduct of a reasonable person, in like or similar circumstances. 

Does my gender (female) affect the outcome of this assessment?  (By way of warning, I’m now going to engage in a bit of speculation -- permitted, I think, in this blog context.)  Since the physical capability of the lifter seems relevant to resolution of this question (and there are both perceived and actual (average) differences in upper body strength between men and women), it seems to me that it well might. Further, it seems likely to me that presumptions about the relative strength (or weakness) of women would make it harder for a woman to show that she was reasonable in carrying the suitcase.  There are, of course, many women who are much stronger (and more agile, better at balancing, etc.) than many men and likely exceed the presumptive strength that might be assigned on the basis of gender alone.  If I am right about the foregoing (largely and admittedly speculative – notably, Calabresi dismisses the above concern by observing that, with respect to physical attributes, the standard “is a fairly individualized one and hence rarely sexist or racist,” Ideals, Beliefs, Attitudes, and the Law 27), this suggests a few issues. 

Does the way that the reasonable person standard is applied punish superwomen?  Are women who make reasonable decisions to engage in conduct on the basis of their actual strength and capabilities found to be negligent because fact finders apply gendered presumptions of capability?  (Or, more realistically, are settlement figures affected based on a forecast of jury application of these gender presumptions?)  If so, should this trouble us?  There is, for example, probably a general sense of how much weight a man can reasonably carry down stairs and men who are more physically capable are in the same situation as superwomen – act in accordance with your own capabilities at your own risk.   

When a woman (in particular one who departs from an attribute likely to be presumed on the basis of gender, such as a “strong” woman) is accused of negligence, should (or do?) counsel anticipate and specifically rebut such gender presumptions (for example, by offering evidence of agility, strength, etc.)?  Should/do we train counsel to recognize when gender presumptions are likely to come into play and how to rebut them?

The above example uses upper body strength as the basis for the gendered presumption.  The average man does, in fact, have greater upper body strength than the average woman (albeit, as noted above, this average difference may not hold with respect to individuals).  However, it seems likely to me that there are other presumptions that fact finders are likely to make about the capacity of a woman based on her gender that are incorrect both as a general matter and as applied to an individual woman.  Are there other and potentially more pernicious gender presumptions relevant to application of the reasonable person standard?

Finally, many note that the reasonable person standard may, as applied, frequently boil down to a question of what is customary in a community.   The potential gender issues of this can perhaps be elucidated by switching the hypothetical.  What if, instead of carrying a suitcase, I was carrying my 20+ lb. son down the steps?  (Yes, customary and reasonable!)  Or a 20 lb.toolbox?   (Hmmm...) Gendered application of the reasonable person standard seems, if anything, more pronounced and potentially troubling viewed in this way.

I have not found the time to adequately research this can of worms and recognize that the issues raised intersect with equality and critical tort scholarship with which I am largely unfamiliar.  So I thank those more learned in these matters in advance for offering thoughts and/or direction to the relevant scholarship.

Posted by Katrina Kuh on May 6, 2010 at 03:44 PM in Torts | Permalink


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Doesn't all this just point to the futility of the "reasonable person" analysis in the first place? If this "objective" standard must be customized to the facts of each case, then we're requiring our judges and juries to determine not what a theoretical reasonable person would do but, instead, what the particular person, with all his or her strengths and weaknesses, should have done. That, I fear, is asking the system to do too much. The only problem: no one seems to have come up with a better system. Perhaps someday a wise torts professor will dream up a better mousetrap.

Posted by: Eric F | May 19, 2010 4:52:45 PM

Just a data point: My mother, who recently served on a jury and who is in most ways extremely feminist, thinks it is unreasonable for me to carry a suitcase of any size, ever, but has no objection to my carrying her 50-pound grandson whenever he wants.

Posted by: Jennifer Hendricks | May 6, 2010 8:29:40 PM

Wouldn't the question be whether the reasonable person would have thought the actual person capable of maneuvering the actual weight down the actual stairs?

Posted by: Managing Board | May 6, 2010 8:27:19 PM

I'm not sure this is a great example, though admittedly I think the RP standard sufficiently contextual to do most of the the, ahem, heavy lifting of ensuring reasonably just results.

20 lbs doesn't sound like much to me (I am, after all, a man), but I agree that some weight not too far north of that often be unwieldy for the average woman. So what? Some weight north of 50 lbs or so is too much for the average man. Is there some reason to think a jury can't process these differences to arrive at a just assessment of reasonable care under the circumstances? As you allude, we could presumably test the woman's strength at trial, to find out if this was in fact too much for her to carry safely. If, for some reason, she did not offer that evidence, do you think it would be invidious for the fact-finder to think it might be too much (and for the finder to do so at a lesser weight than would be the case were the plaintiff a man)?

If you do, I don't think we will agree that this is a serious concern. I'm far more struck by the fact that damage awards vary by race and gender lines, even beyond that which might be predicted by gender- and race- sensitive income tables.

The hypo about a baby is interesting, but I do not think it proves the point. Yes, the woman would get more of a "break" from the jury. But so would a man carrying heavy tools for his employer. Might it be the case that a woman carrying heavy tools would not get the same consideration as a man (again, your example points to this possibility). Yes, I can imagine that. I'm not sure that the problem is one that could be solved by verbally reformulating the RP standard; I'm not sure this is a problem of the rule (any rule) at all.

I'm also a little unclear how the current standard would harm unusually strong women. I take it you mean that the strong (and therefore, quite reasonable) woman doesn't get the benefit of a default perception of strength, and could be treated like an ordinary, statistically weaker, woman. I agree this would be wrong, but it's not as if the average lawyer is going to ignore the fact that his client set the Olympic record in the hammer throw - that evidence is coming in. Possibly, as above, there is a concern that the jury won't believe it. I can't discount that entirely, but suggest again this is not a function of the standard's formulation.

Moving beyond physical strength, I do wonder whether an explicitly gendered standard would benefit women claimants (and defendants) more than the current unisex standard. I think this could be examined empirically through mock juries, and it sounds like an interesting project. Does anyone know if this has been tried?

Posted by: Adam Scales | May 6, 2010 5:48:54 PM

I'm a bit surprised you didn't mention Mayo Moran's book, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (2003). After discussing feminist and other critiques of the standard as employed in tort, criminal and administrative law, Mayo endeavors to construct, as the subtitle suggests, an egalitarian model of the standard sensitive if not responsive to these critiques (I think she's largely successful, but that's a judgment from the outside looking in as it were).

Posted by: Patrick S. O'Donnell | May 6, 2010 4:38:35 PM

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