The concept of reasonableness that figures at the center of Holmes' notion of negligence is objective in nature, that is, conduct is measured against a community-wide standard of reasonableness rather that turn on the subjective mental state of the defendant. Recall that your text defines the reasonable man as "the man in the Clapham omnibus," or "the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves." Franklin & Rabin p. 51. Thus, a naive person who innocently lights firecrackers in a crowd not knowing that they might cause harm to others, will most likely be answerable in tort to those she injures because the community would deem that conduct unreasonable, even though we might also say that the conduct was reasonable in light of what she subjectively knew. In this case, she should have known of the danger her conduct posed to others.
But how realistic is an objective standard of reasonableness? Would all the members of a community agree about where to place the bounds of reasonable conduct? Might different populations feel differently? Is there any risk that the view ultimately determined to be reasonable is one which marginalizes the values of members of the society who typically experience marginalization?
If these concerns have any value, how should they affect the ways in which judges and/or juries determine the question of reasonableness in negligence cases? Should the care due from a defendant vary with the sex, race, ethnicity, religion etc. of the potential accident victim? Should the level of care due to a plaintiff vary with his or her sex, race, ethnicity, religion etc.?
After all, women are notoriously bad drivers and throwers, while men are much less nurturing than women (that was a joke, in case any of you are taking me seriously!).
The cases below are designed to illustrate more serious concerns about Holmes' Reasonable Man. As you read them, please consider both how you feel about a reasonable person standard being tailored to the particular circumstances raised in the cases, as well as the implications these concerns raise for negligence law more generally.
1. The Lake Shore & Michigan Southern R.R. Co. v. Mary Miller
2. Calivn Daniels v. Richard Clegg
3. Little Rock v. Tankersly
4. Ellison v. Brady
5. Taylor v. Metzger
Additional Materials on Reasonable Women - Optional Reading
Margo Schlanger, Injured Women Before Common Law Courts: 1860-1930, 21 Harv. Women's L.J. 79 (1998)Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. LEGAL EDUC. 3 (1988). Leslie Bender, Changing the Values in Tort Law, 25 TULSA L.J. 759 (1990).
Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa. L. Rev. 463 (1998)
Martha Chamallas, Importing Feminist Theories to Change Tort Law, 11 Wis. Women's L.J. 389 (1997)