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Reasonable person standard and sexual harassment

opinion

In law, a reasonable personreasonable manor the man on the Clapham omnibus [1] is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions. Strictly according to the fiction, it is "Reasonable person standard and sexual harassment" for a party to seek evidence from actual people in order to establish how the reasonable man would have acted or what he would have foreseen.

In some practices, for circumstances arising from an uncommon set of facts, [5] this person is seen to represent a composite of a relevant community's judgement as to how a typical member of said community should behave in situations that might pose a threat of harm through action or inaction to the public.

McDonald's Restaurantscan be examples where a vetted jury's composite judgment were deemed outside that of the actual fictional reasonable person, and thus overruled. The reasonable person belongs to a family of hypothetical figures in law including: Reasonable person standard and sexual harassment there is a loose consensus in black letter lawthere is no accepted technical definition.

As with legal fiction in general, it is somewhat susceptible to ad hoc manipulation or transformation, and hence the "reasonable person" is an emergent concept of common law.

As a legal fiction[3] the "reasonable person" is not an average person or a typical person, leading to great difficulties in applying the concept in some criminal cases, especially in regards to the partial defence of provocation. The standard performs a crucial role in determining negligence in both criminal law —that is, criminal negligence —and tort law.

The standard is also used in contract law, [12] to determine contractual intent, or if a breach of the standard of care has occurred, provided a duty of care can be proven. The intent of a party can be determined by examining the understanding of a reasonable person, after consideration is given to all relevant Reasonable person standard and sexual harassment of the case including the negotiations, any practices the parties have established between themselves, usages and any subsequent conduct of the parties.

The standard does not exist independently of other circumstances within a case that could affect an individual's judgment.

InAdolphe Quetelet detailed the characteristics of l'homme moyen French"average man". His work is translated into English several ways. As a result, some authors pick "average man", "common man", "reasonable man", or stick to the original " l'homme moyen ". Quetelet was a Belgian astronomermathematicianstatistician and sociologist. He documented the physical characteristics of man on a statistical basis and discussed man's motivations when acting in society.

Two years later, the "reasonable person" made his first appearance in the English case of Vaughan v. 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. Menlove's attorney admitted his client's "misfortune of not possessing the highest order of intelligence," arguing that negligence should only be found if the jury decided Menlove had not acted with " bona fide [and] to the Reasonable person standard and sexual harassment of his [own] judgment.

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. Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.

That was, in substance, the criterion presented to the jury in this case and, therefore, the present rule must be discharged. English courts upheld the standard again nearly 20 years later in Blyth v. Company Proprietors of the Birmingham Water Works[16] holding:. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

American jurist Oliver Wendell Holmes, Jr. For society to function, "a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare. 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. The Reasonable person standard and sexual harassment person standard is by no means democratic in its scope; it is, contrary to popular conception, intentionally distinct from that of the "average person," who is not necessarily guaranteed to always be reasonable.

Taking such actions requires the reasonable person to be appropriately informed, capable, aware of the law, and fair-minded.

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Such a person might do something extraordinary in certain circumstances, but whatever that person does or thinks, it is always reasonable. The reasonable person has been called an "excellent but odious character.

He is an ideal, a standard, the embodiment of all those qualities which we demand of the good citizen English legal scholar Percy Henry Winfield summarized much of the literature by observing that:.

He will not anticipate folly in all its forms but he never puts out of consideration the teachings of experience and Reasonable person standard and sexual harassment will guard against negligence of others when experience shows such negligence to be common.

He is a reasonable man but not a perfect citizen, nor a "paragon of circumspection. Under American common law, a well known—though nonbinding—test for determining how a reasonable person might weigh the criteria listed above was set down in United States v. The case concerned a barge that had broken her mooring with the dock. Writing for the court, Hand said:. 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.

While the legal fiction [3] of the reasonable person represents the ideal human actor, one would be hard-pressed to characterize any individual human as meeting the standard, whether in whole or in part, all of the time. Since some human actors have limitations, the standard only requires that people act similarly to how "a reasonable person under the circumstance" would, as if their limitations were themselves circumstances.

As such, courts require that the reasonable person be viewed as experiencing the same limitations as the defendant. For example, a disabled defendant is held to a standard that, by necessity, represents how a reasonable person with that Reasonable person standard and sexual harassment disability would act.

Were such allowances made for every defendant, there would be as many different standards for negligence as there were defendants; and courts would spend innumerable hours, and the parties much more money, on determining that particular defendant's reasonableness, character, and intelligence. By using the reasonable person standard, the courts instead use an Reasonable person standard and sexual harassment tool and avoid such subjective evaluations. The result is a standard that allows the law to behave in a uniform, foreseeable, and neutral manner when attempting to determine liability.

One broad allowance made to the reasonable person standard is for children. The standard here requires that a child act in a similar manner to how a "reasonable person of like age, intelligence, and experience under like circumstances" would act.

This is called the defense of infancy: In some jurisdictions, one of the exceptions to these allowances concern children engaged in what is primarily considered to be high-risk adult activity, such as operating a motor vehicle, [26] [27] and in some jurisdictions, children can also be " tried as an adult " for serious crimes, such as murderwhich causes the court to disregard the defendant's age.

The reasonable person standard makes no allowance for the mentally ill. In the years since, the law has kept to the legal judgment of having only the single, objective standard.

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 rationed that by not accepting mental illness as a bar to recovery, a liable third party, in the form of a caregiver, will be more likely to protect the public because of the potential for liability.

The courts have also stated that Reasonable person standard and sexual harassment reasoning behind the harsh treatment is because, unlike children or the physically disabled, members of the public are unable to identify a person with a mental illness.

In cases where a human actor utilizes a professional skill set, the "reasonable person under the circumstances" test becomes elevated to a standard of whether the person acted how a "reasonable professional under the circumstances" would have, without regard to whether that actor is actually a professional, and further without regard to the degree of training or experience of that particular actor. However, such other relevant factors are never dispositive.

Some professions may maintain a custom or practice long after a better method has become available. The new practices, though less risky, may be entirely ignored.

In such cases, the practitioner may very well have acted unreasonably despite following custom or general practices. In the realm of healthcare, plaintiffs must prove via expert testimony the standard of medical care owed and a departure from that standard. The only exception to the requirement of expert testimony is where the departure from accepted medical practices was so egregious that a layperson can readily recognize the departure.

However, controversial medical practices can be deemed reasonable when followed by a respected and reputable minority of the medical field, [32] or where the medical profession cannot agree over which practices are best. 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 correctly applied.

The test is usually applied to whether the level of force used was excessive or not. If an appropriately trained professional, knowing what the subject of the investigation knew at the time and following their agency guidelines such as a force continuumwould have used the same level of force or higher, then the standard is met.

If the level of response is determined to be justified, the quantity of force used is usually presumed to have been necessary unless there are additional factors.

reasonable person standard with the...

For example, should it be determined that a trained police officer was justified in using deadly force against a suspect, the number of times he fired is presumed to have been necessary to stop the suspect's action that justified use of deadly force, as long as there aren't other factors, such as a reckless disregard of other officers' or bystanders' safety, or it is clearly proven that additional force was used after the suspect was no longer a threat.

"Reasonable person standard and sexual harassment" any person undertakes a skills-based activity that creates a risk to others, they are held to the minimum standard of how a reasonable person experienced in that task would act, [34] regardless of their actual level of experience. Factors external to the defendant are always relevant. Additionally, so is the context within which each Reasonable person standard and sexual harassment is made.

It is within these circumstances that the determinations and actions of the defendant are to be judged. There are myriad factors that could provide inputs into how a person acts: The standard of care required for each set of circumstances will vary, yet the level of care due is always what is reasonable for that set of circumstances.

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