From: Black Unicorn <unicorn@schloss.li>
Date: Wed, 24 Apr 1996 16:23:09 -0700 (PDT)
To: Scott Brickner <sjb@universe.digex.net>
Subject: Re: [NOISE- Legal Theory] Reasonable people
In-Reply-To: <199604242243.SAA22982@universe.digex.net>
Message-ID: <Pine.SUN.3.93.960424184735.3252D-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Wed, 24 Apr 1996, Scott Brickner wrote:

> 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.

As I understand it, your test goes like this:

Is handler an "expert"?

Yes?  :  Examine procedures to determine liability.

No?   :  Handler is liable.

That's two standards.  One standard of strict liability (for the
non-expert) and one of negligence (for the expert).

> 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.)

Other way around.  Negligence is milder.  Negligence is merely the absence
of due care.

Recklessness:  The state of mind accompanying an act, which either pays no
regard to its probably or possibly injurious consequences, or which,
though forseeing such consequences, persists in spite of such knowledge.
Recklessness is a stronger term than mere or ordinary negligence...
Black's Law Dictionary 6d., (1990).

> >> 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"?

Ok.  The standards you have created for knowledgeable and unknowledgeable
people are different.  My key objection to your position was your view
that it was 1> an objective determination and 2> a single standard.  It is
neither.

> >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.

Adequate for who?  You've already said that the court has to determine if
someone is knowledgeable first.  (And thus in your test bypass the
automatic finding of liability).  This is a very complicated test you're
designing.

> 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.

Above you say "Someone with training ought to be expected to do the
'right' thing."  That sounds like a stricter standard on CPR types.  i.e.,
someone without training ought not to be expected to do the right thing.
In this good faith helper at the side of the road example, do you want to
punish the CPR type for doing his best despite his ignorance?  (You might,
I'm just trying to clarify your position, which seems internally
inconsistant to me).

> >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.

I didn't know you ment willfully.  I don't see that anywhere.

> >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?

No.  Not exactly.  It's more of a "wrong without a remedy" deal.

> 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.

Both of those are crimes today.

> >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.

The point is that allowing that disparity seems silly.
 
> >> 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.

But under your test it doesn't matter.  He didn't know how to attempt CPR,
he's liable.

> >> 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.

And in your test there is a presumption of fault on the non-expert.  If he
did everything right purely by accident or from what he saw on "baywatch"
and the victim dies anyway, under your test he's cooked.

> 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.

Woah.  Ok.  So you want a reasonable person determination of the activity
and if the activity falls within a dangerous defintion.  (This is called
ultrahazardous activity in tort law).  Then you want strict liability on a
non-expert who engages in that activity, and a "reasonable expert"
standard on the expert who engages in that activity?

Putting aside for a moment my already voiced concerns, doesn't the idea of
having a "reasonable person" standard on the classification of an
ultrahazardous activity seem silly?  Does nuclear physics seem dangerous
to Joe Sixpack?  What about Cold Fusion experimentation?  Microwave
repair?  Seems there's a tremendous opportunity for error in that kind of
standard.  It also has the effect of making the scope of the definition of
"ultrahazardous" very large.  The larger it is, the more interference and
common law regulation you're going to have on the economy.  _Particularly_
so where you are imposing a strict liability standard.
 
> >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.

Just legally, an objective standard is when you hold everyone to a
reasonable person standard.  Everyone is Joe Blow.  Would Joe Blow have
done this that or the other thing.  As soon as you start talking "experts"
you're out of the objective field.

> >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.

Then why impose it without an examination into fault on non-experts?  In
your test the non-expert bears the burden of showing he's an expert if he
wishes to prevail.  The victim need only say "He was doing CPR, I got
hurt, he's a non-expert."  Wham, liability under your test.  That's not a
burden at all.  It's certainly not a burden of showing negligence.

> >> 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.

Or under your test, liable until proven expert.

As for faulty assumptions, go to court someday.  They are common.
In designing systems one _must_ assume them.

---
My preferred and soon to be permanent e-mail address:unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information
Opp. Counsel: For all your expert testimony needs: jimbell@pacifier.com