Document Type

Article

Publication Date

2001

Abstract

Reasonable care is, of course, a concept central to any torts class. But what is it? One very standard doctrinal move is to conceptualize reasonable care as that care shown by a "reasonable person" under like circumstances. The next step, logically, is to visualize this reasonable person. Visualization requires some important choices. For example, is the reasonable person old or young? Disabled or not? These are two questions that all the casebooks I have consulted discuss. But, oddly, no casebook of which I am aware deals with the trait that nearly invariably figures in our description of people: sex. If the casebooks are silent, however, the cases and commentary are not Judicial opinions frequently used to refer to the "reasonable man" rather than the reasonable person. As stated in the earliest, and one of the most frequently quoted, such articulation, "[n]egligence 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." In a famous passage, in 1933, Lord Judge Greer described as well as named the reasonable man in explicitly masculine phrases; he was "'the man who takes the magazines at home and in the evening pushes the lawn mower in his shirt sleeves."' Feminism has not let the masculine origin of the reasonable person go unremarked. Feminist scholars have argued that tort law used to evaluate care against a standard that was not just linguistically but substantively masculine-that the reasonable man is the mascot of tort law's oppression and exclusion of women. The unremedied effects, some have argued, continue in place. For example, Leslie Bender writes: It was originally believed that the "reasonable man" standard was gender neutral. "Man" was used in the generic sense to mean person or human being. But man is not generic except to other men.... As our social sensitivity to sexism developed, our legal institutions did the "gentlemanly" thing and substituted the neutral word "person" for "man." . . . Although tort law protected itself from allegations of sexism, it did not change its content and character.

Comments

Work published when author not on Michigan Law faculty.


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