Reasonably subjective & Subjectively Reasonable - Examining Subjectivity in Negligence

Shiman, Yehonatan, Law - School of Law, University of Virginia
Gilbert, Michael, School of Law, University of Virginia

Objectivity grounds negligence law. At first glance, three important objective assessments characterize negligence claims. First is the reasonable person standard, a measurement derived from how a reasonably prudent person would have acted in the same circumstance. To begin this analysis, courts determine the appropriate-behavior baseline by evaluating the litigants’ evidence. Defendants are then assessed against this standard to determine whether they failed to take adequate precautions. Subject to few exceptions, the injurer's subjective capacity is negligible in determining negligence.
Damages are the second objective element as they are often based on the loss’s objective value. There are two primary ways to evaluate harm to property in tort law: (1) as relative to the property’s market value, or (2) in terms of the owner’s subjective value. In some instances, these values are equivalent, however, at other times they diverge significantly. The latter situation arises most obviously with sentimentality since this emotional attachment leads objects to acquire a higher value than their market price. Subjective value can also develop through an owner’s reliance on her property for certain functions. Finally, the jury’s verdict provides the third objective component as this judgment embodies the community’s consensus, rather than a singular adjudicator’s subjective opinion.
This dissertation attempts to shed light on some previously unexplored ideas in this extensive area of scholarship.

SJD (Doctor of Juridical Science)
Torts, Negligence, Subjectivity, Damages, Insurance, Jury Voting
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