From: Scott Brickner <sjb@universe.digex.net>
Date: Wed, 24 Apr 1996 15:43:40 -0700 (PDT)
To: Black Unicorn <unicorn@schloss.li>
Subject: Re: [NOISE- Legal Theory] Reasonable people
In-Reply-To: <Pine.SUN.3.93.960424150105.25996G-100000@polaris.mindport.net>
Message-ID: <199604242243.SAA22982@universe.digex.net>
MIME-Version: 1.0
Content-Type: text/plain


Black Unicorn writes:
>On Wed, 24 Apr 1996, Scott Brickner wrote:
>> I'd argue that I'm holding everyone to the same standard:  either know
>> the safe ways of handling viruses and follow them, or don't handle them
>> at all.
>
>Now you have to get into the question of who is a trained virus handler.
>This is a subjective analysis.  The court is going to have to do this case
>by case.  And below in your message its clear you do not hold everyone to
>the same standard.  The virus/CPR expert is held to a different standard
>in your example.  It is the same standard in that you punish everyone if
>they "Do something stupid."  But "stupid" is different for each person.

I don't agree with this.  I expect everyone who handles viruses to know
what they're doing and take precautions.  By handling the virus at all
you are effectively claiming such expertise, as I see it.  The court
needn't consider formal training at all.  A "reasonable person" ought
to know if his training is adequate, after all.  The court may choose
to examine this claim, and find it to be in error, thus making the
handling of the virus reckless.  If the court accepts the claim, then
it should examine the actual procedures.  If the procedures are found
wanting, there is negligence (though I suspect my "non-legalese" usage
of these terms has them reversed --- negligence is a worse fault, in my
estimation: you had the knowledge but failed to act in accordance with
it; recklessness means you acted without fully appreciating the
consequences, and thus didn't know better.)

>> You seem to imply that I'd hold the untrained virus writer
>> harmless.  No way.  He's reckless and *should* be liable.
>
>I indicated only that the standards you had for trained and untrained
>virus writers were different.

I guess "trained" may have been inappropriate.  How about "knowledgable"?

>> When one has
>> training, it's no longer reckless to simply handle (or write) the
>> virus, but disregarding safe procedures is negligent.
>
>See my above position.  Three standards.  One for those with training,
>one for those without and some kind of standard for determining what is
>'enough' training.  Given the traditional institutional costs of courts,
>particularly their 'catch up' chase with technology, I don't think I'd
>want courts doing these calculations.

Formal training implies that one is knowledgable, but such knowledge
may be acquired without formal training (or new fields would never come
about).  Certain actions are clearly acceptable for knowledgable people
but are dangerous for those without the knowledge --- handling a
biological virus is one of them.

The court need to nothing more than determine whether the precautions
were adequate.

>> It seems to me that the "reasonable person" isn't the real issue
>> there.  Someone with training ought to be expected to do the "right"
>> thing.  If you're trained to administer CPR, and you do it *wrong*, you
>> shouldn't be absolved of liability -- you're negligent.
>
>But the other argument goes that we have to give the people who know what
>they are doing more leeway because they will be judged by people who don't
>know about the subject and because if we want to encourage good samaritans
>the way to do it is not by increasing their liability.  (You effectively
>do increase their liability above by implying that you would like to
>impose a stricter negligence standard for trained CPR types).

I'm not sure I'm imposing stricter negligence on trained CPR types, see
my comments below.  What I *am* doing is imposing a stricter
recklessness standard on untrained types.

>Keep in mind that doing the "wrong" thing isn't always negligence either.
>Doing the wrong thing because you were careless, that's negligence.

Doing the wrong thing willfully is reckless or even malicious.

>Also note that you can be negligent without harming anyone.

But is it actionable?  Doesn't the law have a sort of "no harm, no
foul" interpretation?  According to Holmes, if I believe that an enemy
is trying to kill me, and I arrange things so that when he thinks he's
shooting me, he's really shooting a mannekin, he has *not* committed
attempted murder.  Similarly, if a pickpocket puts his hand in my
pocket, but there's nothing there, he hasn't committed a crime.

>It could be argued that it's folly to impose a lower standard on the CPR
>'idiot' and thus encourage him to run out and do CPR.  One can imagine a
>scene where the CPR trained fellow pulls an idiot out of the crowd and
>gives instructions for the idiot to preform the CPR so as to take
>advantage of both his increased knowledge and the idiot's limited
>liability (reasonable person standard, not reasonable CPR expert
>standard).

The expert shouldn't get reduced liability for this.  The 'idiot' is
effectively a tool in the expert's hands.  Too, the 'idiot' has no
way of assuring himself that the supposed expert is, in fact, qualified.
It's no more appropriate for him to administer CPR under the guidance
of a stranger than to do it on his own judgement.

>> If you don't
>> know anything about CPR (except what you've seen on "Baywatch"), then
>> we're back to what a "reasonable person" should do.
>
>That probably includes not trying to preform CPR... no?

Dunno.  Is it "reasonable" for an untrained person to attempt CPR?  That's
for a court to decide.

>> If you're trained
>> and you do it right, but the person is still injured by your actions,
>> limiting your liability is society's way of encouraging you to use
>> your training for the common good.
>
>This begins to look like the partial abortion debate, where the argument
>goes something like this:
>
>Yes, it's criminal to preform the procedure, but you can absolve yourself
>after the fact by showing us (medical morons) that the mother's life was
>in danger.
>
>That's not encouraging in the least to doctors.  (Which in the abortion
>example, is precisely the point).
>
>The trick is in your concept of "and you do it right."  That's a
>subjective analysis.

Actually, I'd say the error in this abortion argument is that there's
a presumption of guilt, which runs counter to a basic tenet of common
law.

In the virus case, I'd expect the plaintiff/prosecutor to prove that
the precautions were inadequate.  Not merely that they were ineffective
in the specific case, but that a "reasonable person" would have known
the activity to be dangerous without adequate precautions, and that a
"resonable expert" would have considered the precautions taken
inadequate.  Without such proof, the defendant need only indicate
what precautions were taken, and claim that they are adequate.

>> In my mind, the difference between the objective standard and the
>> subjective one marks the difference between recklessness and
>> negligence.  If an objective "reasonable person" wouldn't do it, it's
>> reckless.  If a subjective "reasonable person" wouldn't, it's
>> negligent.
>
>This makes it REALLY tough.  Reckless usually means extensive punative
>damages are on the way.  Simple negligence doesn't always trigger them.
>By using these terms on the same facts the idiot gets simple negligence,
>the expert gets expanded liability and potential punative damages.

I see it the other way around.  The "objective" reasonable standard
says "don't handle the virus unless you're and expert".  Handling the
virus and being found incompetent to do so (the idiot case) means
you're reckless and subject to those punitive damages.  Being found
competent to handle them and found not to have taken adequate steps
leaves you at least negligent, but reckless if it wasn't accidental.
Competent with adequate precautions means you weren't even negligent.

>Because the expert will be at significant disadvantage at trial (if he's
>an expert, if he knew what he was doing, why did the victim get hurt) what
>you've done is moved closer to the realm of strict liability for all
>experts. (Strict liability simply eliminates the negligence calculation.
>If you were doing the activity, (CPR) and someone got hurt, you're liable.
>Period.  No calculation of fault).  What this system does is create
>something like a rebuttable presumption of negligence on the expert.  That
>starts to look like strict liability.

Precautions don't necessarily eliminate danger, they simply reduce it
to acceptable levels.  Licensed drivers are, in some sense, driving
experts.  Why do they get in accidents?  Often because of liability,
but often there are merely unpredictable circumstances --- junk in the
road, sudden ice storms, etc.  The burden of proving negligence must
remain with the one claiming injury.

>> Perhaps these aren't the "legalese" usages of the terms, but it seems
>> reasonable to me.
>
>It creates systemic problems though.  (Like the burden of overcoming the
>assumption that the expert must have erred).

It's a faulty assumption, and a common law court ought to stick to its
philosophical origins --- innocent until proven guilty.