Strictly according to the fiction, it is misconceived for a party to seek evidence from actual people to establish how someone would have acted or what he would have foreseen.
[10][11] While the specific circumstances of each case will require varying kinds of conduct and degrees of care, the reasonable person standard undergoes no variation itself.
[15] During the Nuremberg Trials, Sir David Maxwell Fyfe introduced the standard of the reasonable person to international law.
After he had been repeatedly warned over the course of five weeks, the hay ignited and burned the defendant's barns and stable and then spread to the landlord's two cottages on the adjacent property.
The Menlove court disagreed, reasoning that such a standard would be too subjective, instead preferring to set an objective standard for adjudicating cases: The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether, taking that rule as their guide, there has been negligence on the occasion in question.
As such, "his neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.
"[23] He heralded the reasonable person as a legal fiction whose care conduct under any common set of facts, is chosen—or "learned" permitting there is a compelling consensus of public opinion—by the courts.
"[25] He is an ideal, a standard, the embodiment of all those qualities which we demand of the good citizen ... [he] invariably looks where he is going, ... is careful to examine the immediate foreground before he executes a leap or bound; ... neither stargazes nor is lost in meditation when approaching trapdoors or the margins of a dock; ... never mounts a moving [bus] and does not alight from any car while the train is in motion, ... uses nothing except in moderation, and even flogs his child in meditating only on the golden mean.
[26]English legal scholar Percy Henry Winfield summarized much of the literature by observing that: [H]e has not the courage of Achilles, the wisdom of Ulysses or the strength of Hercules, nor has he the prophetic vision of a clairvoyant.
Writing for the court, Hand said: [T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.While the test offered by Hand does not encompass all the criteria available above, juries in a negligence case might well still be instructed to take the other factors into consideration in determining whether the defendant was negligent.
[29] The Sedona Conference issued its Commentary on a Reasonable Security Test to advance the Hand Rule for a cybersecurity context.
The commentary adds three important articulations to the Hand Rule; a person is reasonable if no alternative safeguard would have provided an added benefit that was greater than the added burden, the utility of the risk should be considered as a factor in the calculation (as either a cost or a benefit, depending on the situation), and both qualitative and quantitative factors may be used in the test.
[citation needed] By using the reasonable person standard, courts instead use an objective tool [weasel words] and avoid such subjective evaluations.
[32] In many common law systems, children under the age of 6 or 7 are typically exempt from any liability, whether civil or criminal, as they are deemed to be unable to understand the risk involved in their actions.
Such judicial adherence sends a message that the mentally ill would do better to refrain from taking risk-creating actions, unless they exercise a heightened degree of self-restraint and precaution, if they intend to avoid liability.
Generally, the courts have reasoned that by not accepting mental illness as a bar to recovery, a potentially liable third party, such as a caregiver, will be more likely to protect the public.
The courts have also stated the reason that members of the public are unable to identify a mentally ill person, as they can a child or someone with a physical disability.
[40] The "reasonable officer" standard is a method often applied to law enforcement and other armed professions to help determine if a use of force was excessive.
Because a reasonable person is objectively presumed to know the law, noncompliance with a local safety statute may also constitute negligence.
[52] From those opposite principles, modern law has found its way to a rough middle ground, though it still shows a strong bias toward the objective test.
As women have historically been more vulnerable to rape and sex-related violence than have men, some courts believe that the proper perspective for evaluating a claim of sexual harassment is that of the reasonable woman.
Rather it refers to the response of a reasonable person when presented with some form of information either by image or sound, or upon reading a book or magazine.
A well-known application of the concept is Judge John M. Woolsey's lifting of the ban on the book Ulysses by James Joyce.
[57] It was nearly two decades after Woolsey that the US Supreme Court set down the standard by which materials, when viewed by l'homme moyen sensuel, were judged either obscene or not.
[58] Generally, it has been l'homme moyen sensuel that has dictated what is and is not obscene or pornographic in books, movies, pictures, and now the Internet for at least the past 100 years.
Very often, for instance, in the case of noise ordinances, the enforcement of the law is only for the purpose of protecting the right of a "reasonable person of normal sensitivity".