From: Black Unicorn <unicorn@schloss.li>
Date: Wed, 24 Apr 1996 14:34:19 -0700 (PDT)
To: Scott Brickner <sjb@universe.digex.net>
Subject: [NOISE- Legal Theory] Reasonable people
In-Reply-To: <199604241648.MAA05361@universe.digex.net>
Message-ID: <Pine.SUN.3.93.960424150105.25996G-100000@polaris.mindport.net>
MIME-Version: 1.0
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On Wed, 24 Apr 1996, Scott Brickner wrote:

> Black Unicorn writes:
> >On Tue, 23 Apr 1996, Scott Brickner wrote:

> >> As such, persons with limited
> >> training in manipulating biological viruses are expected to avoid doing
> >> so.  Individuals *with* training are expected to take adequate
> >> precautions to avoid their spread.  I see no reason why electronic
> >> viruses shouldn't be treated similarly.  If you're going to write them,
> >> you *better* take steps to prevent their release, or you are liable for
> >> the damages.
> >
> >Now you jumped the argument a bit.  There is a difference in holding
> >someone to a reasonable standard generally, and defining several standards
> >based on the experience of the person to which the standard is being
> >applied.
> 
> 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.

> 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.

> 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.
 
> >This latter approach is often called (jokingly by some) the Objective
> >Subjective Standard.  (Objective standard being without consideration of
> >the view of the individual being judged, subjective including that view,
> >and object subjective being the consideration of what the general class of
> >individual would do without consideration of the individual's specific
> >view).
> >
> >(What would a reasonable virus writer do is distinct from what a
> >reasonable Bob Dwyer, Ph.D. Computer science might do is distinct from
> >what a reasonable person might do).
> >
> >Many courts reject higher (or lower- there are arguments for this 
> >too) standards of care for experts than for lay persons or other
> >non-experts in tort cases, prefering to impose the "reasonable person"
> >(Reasonable man for those of you who went to law school before 1985)
> >standard universially.
> 
> I assume that a canonical example of the lower-standard case is the
> "Good Samaritan" laws which reduce the liability of a trained person
> performing rescue activities (e.g., administering CPR).

Yes.

> 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).

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

Also note that you can be negligent without harming anyone.

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).

> 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?

> 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.

> 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.

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.

> 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).

> >If there is interest, I will post exerpts of the arguments on both sides
> >of this issue with the header [Noise].
> 
> I'd be interested.

In an economic sense you want a negligence rule that balances a few
interests.  First, you want to either encourage or discourage the
activity.  (Virus work or CPR by the side of the road have different
calculations).  Second, you want to give injured persons the chance to
recover damages.  Third, you want to decrease the total number of
accidents or injuries as much as possible.

A lot of the decision whether to apply strict liability or negligence is
going to be based on where you believe the costs should be shifted.
Strict liability shifts the costs onto the person engaging the activity.
The actor will increase his own costs to the extent he can still conduct
the activity and still reduce the number of times he is called into court
and damages are awarded against him.  He will, of course, take no more
care than his damages might be.  If the largest ever award for a CPR
related injury is $500,000, no one is going to spend more than that
in increased care.  The same calculation will be made with negligence, 
but the costs will more often be shifted to the victim.  "The defendant
will just take those precautions that minimize the sum of accidents and
the costs of their prevention, whether negligence or strict liability is
in place."  Epstein, Torts 5d., 166 (1990).

What you really want to do, economically, is shift the cost onto the party
most able to bear the cost.  ("Least Cost Avoider").  This will allow the
return of damages with the least economic impact after the fact, and
increase the amount of care exerted by the next Least Cost Avoider ex
ante.

It's interesting to note the argument that in the age of insurance, it
really makes no difference who you put the costs on as society as a whole
ends up footing the bill anyway.

While holding experts to a higher standard makes some sense where experts
are holding themselves out to be experts for marketing and reputation,
when they are preforming acts like CPR and such you have to consider the
possibility that a careless expert is better than a competent layman.

For full treatments, See e.g., Shavell, Economic Analysis of Accident Law
(1987); Rosenbaum, The Degree of Skill and Care Legally Required of a
Medical or Surgial Specialist, 49 Medico-Legal J. 85 (1932); Eddy,
Professional Negligence (1955); D. Parlett, Professional Negligence
(1985); Comment: Professional Negligence, 121 U.Pa.L.Rev. 627 (1973).

---
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"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
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