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The Reasonable Man: Legal Fiction or Psychosocial Reality?

Published online by Cambridge University Press:  01 July 2024

Edward Green
Edward Green*
Affiliation:
Eastern Michigan University
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Extract

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This paper explores the judgmental process involved in the determination of liability in accident cases. The law of negligence, unlike other branches of the civil law and the criminal law, lacks a body of substantive rules by which a jury may determine the legality of conduct. The acts of one person which may result in property loss or physical injury to another are extremely varied. This variety makes it all but impossible to specify, in advance, what kind of behavior constitutes adequate caution or due care in given situations. Hence, the law has devised a general procedure by which to reach a judgment on this matter for any particular case. It directs the members of the jury to consider what precautions a person should take while engaged in some potentially hazardous endeavor in order to minimize the risk of possible harm to others, and offers a model of behavior “... the supposed conduct, under similar circumstances, of a hypothetical person, the reasonable man of ordinary prudence who represents a community ideal of reasonable behavior.”

Type
Standards of Judgment
Information
Law & Society Review , Volume 2 , Issue 2 , February 1968 , pp. 241 - 258
Copyright
Copyright © 1968 by the Law and Society Association

Footnotes

Author's Note: This investigation was supported by a grant from the Social Science Research Council. Phyllis Ullman Kostich, Susan Mieden, and Thomas M. Fuchs assisted in the collection of the data. Diane Allevato assisted in the analysis.

References

1. W. Prosser, Handbook of the Law of Torts 224 (1941) (emphasis added).

2. United States v. Carrol Towing Co., 159 F.2d 169 (2d Cir. 1947); see also Terry, Negligence, 29 Harv. L. Rev. 40 (1915).

3. C. Gregory & H. Kalven, Cases and Materials on Torts 64 (1959).

4. L. Green, Judge and Jury 85 (1930).

5. For an extended discussion of the formation and structure of scales of judgment see M. Sherif & C. Hovland, Social Judgment 1-16 (1961).

6. A composite of the sixteen complete versions of the narrative constituting the experimental stimulus may be obtained from the author.

7. K. Wilson, A Distribution-Free Test of Analysis of Variance Hypotheses, 53 Psychological Bull. 96-101 (1956).

8. The procedure for computing the total chi-square is given in K. Wilson, supra note 7.

9. S. Asch, Social Psychology 450-51 (1952).

10. M. Sherif, A Study of Some Social Factors in Perception, Archives of Psychology (1935).

11. E. Green, The Effect of the Penalty Imposed in the Preceding Case on Sentences Meted Out in Criminal Cases, in Proceedings of the First National Symposium on Law Enforcement Science and Technology (1967).

12. Sherif & Hovland, supra note 5, at 8.

13. Legal and Criminal Psychology 55-57, 79-81, 96-119 (H. Toch ed. 1961) for references anent the psychology of the jury and trial tactics directed at swaying the jury.

14. F. Strodtbeck, R. James & C. Hawkins, Social Status in Jury Deliberations, 22 Am. Sociological Rev. 713, 719 (1957).

15. See generally C. W. Mills, Situated Actions and Vocabularies of Motive, 5 Am. Sociological Rev. 904-13 (1940).

16. See N. Foote, Identification as the Basis for a Theory of Motivation, 16 Am. Sociological Rev. 14-21 (1951). Foote points out that identification, “commitment to a particular identity,” provides the mechanism for the transformation of external norms into motivated behavior.

17. Strodtbeck et al., supra note 14.

18. H. Helson, Adaptation Level as a Basis for a Quantitative Theory of Frames of Reference, 55 Psychological Bull. 297-313 (1948).

19. M. Preston & P. Baratta, An Experimental Study of the Auction Value of an Uncertain Outcome, 61 Am. J. Psychology 183-93 (1948).

20. Actually the zone of neutrality or the indifference point occurs at about the geometric mean of the magnitudes of the stimulus series.