6. Breach of duty

This chapter discusses the law on standard of care and breach of duty. To establish that the duty of care has been breached, the standard of care must first be found and then it must be decided if that standard was reached in the circumstances. The general standard of care is objective: the ‘reasonable person’ standard. Variations in the standard of care regarding children and the more skilled or professional are discussed, as are those pertaining to sport and the medical profession. Proof of breach must be established by the claimant on the balance of probabilities; occasionally with the benefit of the evidential tool of res ipsa loquitur.

The Reasonable Person Standard: Psychological and Legal Perspectives

In criminal cases of self-defense and provocation, and civil cases of negligence, culpability is often decided with reference to how a reasonably prudent person (RPP) would have behaved in similar circumstances. The RPP is said to be an objective standard in that it eschews consideration of a defendant's unique background or characteristics. We discuss theory and evidence suggesting that in morally relevant judgments, including those involving negligence, self-defense, and provocation, the tendency to rely on the self—on one's own values and predilections—dominates considerations of the RPP. We consider subjective standards that have been proposed as alternatives to the RPP and review research on this topic. We conclude by considering avenues for future research, particularly addressing conditions in which self-standards of reasonableness are most likely to prevail. Expected final online publication date for the Annual Review of Law and Social Science, Volume 17 is October 2021. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.

Epistemic Responsibility in Sexual Coercion and Self-Defense Law

Those accused of sexual coercion and unjustified killing can defend themselves in American courts by arguing that a reasonable person in their situation could have held an exonerating belief—respectively: a belief in another person’s sexual consent, or another person’s murderous intentions. In this chapter, Liberto argues that this reasonable belief standard is problematic. Liberto presents an alternative suggestion by Donald Hubin and Karen Healey with regard to cases of sexual coercion that she labels the “reasonable expectation from state” (REfS) standard. Liberto argues that adopting a REfS standard for adjudicating both self-defense and sexual coercion cases is better than the “reasonable person” standard. However, contra Hubin and Healey, Liberto argues that expectations from the state towards victims of these criminal cases—expectations that ascribe epistemic responsibility to the victims—are misdirected.

Justifying risk-related standards of capacity via autonomy alone

The debate over risk-related standards of decisional capacity remains one of the most important and unresolved challenges to our understanding of the demands of informed consent. On one hand, risk-related standards benefit from significant intuitive support. On the other hand, risk-related standards appear to be committed to asymmetrical capacity—a conceptual incoherence. This latter objection can be avoided by holding that risk-related standards are the result of evidential considerations introduced by (i) the reasonable person standard and (ii) the standing assumption that patients have capacity. This evidential approach to justifying risk-related standards of capacity avoids the most significant challenges faced by extant views while grounding risk-related standards in two fairly uncontroversial views in biomedical ethics.

Torts and Other Wrongs

Torts and Other Wrongs is a collection of eleven of the author’s essays on the theory of the law of torts and its place in the law more generally. Two new essays accompany nine previously published pieces, a number of which are already established classics of theoretical writing on private law. Together they range across the distinction between torts and other wrongs, the moral significance of outcomes, the nature and role of corrective and distributive justice, the justification of strict liability, the nature of the reasonable person standard, and the role of public policy in private law adjudication. Though focused on the law of torts, the wide-ranging analysis in each chapter will speak to theorists of private law more generally.

6. Breach of duty: the standard of care

This chapter discusses the law on standard of care and breach of duty. To establish that the duty of care has been breached, the standard of care must first be found and then it must be decided if that standard was reached in the circumstances. The general standard of care is objective: the ‘reasonable person’ standard. Variations in the standard of care regarding children and the more skilled or professional are discussed, as are those pertaining to sport and the medical profession. Proof of breach must be established by the claimant on the balance of probabilities; occasionally with the benefit of the evidential tool of res ipsa loquitur.

Legal Epistemology

Legal practice is up to its neck in epistemology. Legal practice involves proof, evidence, doubt, testimony, arguments, witnesses, experts, and so on. The epistemology of legal practice, often referred to as legal epistemology, examines epistemological questions raised by legal practice. It can also apply legal insights to illuminating perennial epistemological problems. Legal epistemology investigates whether standards of proof, such as “beyond reasonable doubt” or “preponderance of evidence,” are best understood as credences, statistical likelihoods, or as qualitative standards. It asks what, if anything, legitimates these standards and in what ways legal standards of proof should be sensitive to practical factors. Legal epistemology examines when and why evidence has a probative value; that is, it investigates how evidence makes a litigated claim more likely. It illuminates what reasons—moral, political, economic, practical, epistemic—justify excluding probative evidence. It questions whether particular kinds of evidence are apt to mislead factfinders. Perhaps some kinds of character evidence, for example, are prejudicial. Legal epistemology asks whether particular aspects of evidence law contribute to epistemic injustice, including hermeneutical injustice, and illuminates sources of legal injustice. It investigates the normativity of profiling. Legal epistemology questions the epistemic and legal values of epistemic properties such as safety, sensitivity, reliability, coherence, intelligibility, knowledge, justification, explanation, narrative structure, epistemic virtue, and truth. Legal epistemology asks whether and how juries and judges can form collective beliefs; it examines features of effective deliberation and judgment aggregation, and studies the effect of disagreement and dissent on legal judgments. Legal phenomena such as expert testimony raise distinctive epistemological questions, such as how to adjudicate and manage expertise in the courtroom. Legal epistemology studies the legal posit of reasonableness, which arises in the reasonable person standard, reasonable doubt standard, and various other areas of legal practice. Legal epistemology can also illuminate the role of knowledge and ignorance in culpability: How should we understand the epistemic criteria for recklessness and negligence, for example, and what precisely is mens rea? Law varies by jurisdiction; different legal systems create and resolve epistemological challenges in different ways. This is evident in topics such as the admissibility of character evidence or hearsay evidence, the permissibility of inferences from silence, or the exclusion of improperly obtained evidence. Legal epistemology is deeply interdisciplinary. In addition to law and philosophy, it involves research in psychology, forensic science, sociology, anthropology, criminology, history, theology, politics, economics (particularly behavioral economics), artificial intelligence, computing, and statistics.

The Reasonable Person Standard for Research Disclosure: A Reasonable Addition to the Common Rule

The revised Common Rule adopts the reasonable person standard to guide research disclosure. Some members of the research community contend that the standard is confusing and ill-suited to the research oversight system. Yet the revised rule is not as radical as it might seem. During the 1970s, judges started using the standard to evaluate negligence claims brought by injured patients who said doctors had failed to obtain informed consent to the harmful procedures. In its influential Belmont Report, the National Commission recommended application of a “reasonable volunteer standard” to guide IRBs evaluating research disclosures. Evidence also suggests that IRBs often invoke the reasonable person standard in deliberations about consent forms. But past application of the standard has been informal and uneven. Robust application of the reasonable person standard will require researchers and IRBs to learn more about what ordinary people want and need to know about the studies they are invited to join. Input from people with personal experience as study participants could be particularly useful to this effort.