Kara Sears
Common sense is a concept that exists within the legal systems of Western Europe and the United States, albeit with some differences. In Western Europe, common sense is applied in product liability cases, where customers are expected to exercise common sense while using a product. In the United States, the concept of common sense is often associated with the reasonable person standard, particularly in tort law. This means that legal decisions are based on what a reasonable person would do or foresee. In terms of specific areas of law, common sense gun laws have been proposed in the United States to address concerns about public safety and the accessibility of firearms to dangerous individuals. These laws aim to strike a balance between firearm rights and sensible regulations.
| Characteristics | Values |
|---|---|
| Area of Law | Insurance law, tort law, gun law |
| Region | Western Europe, US |
| Definition | The concept that the customer must use their common sense while using a product |
| Reasoning | The objective "reasonable person" standard |
| Example | A couple put their cat in a washing machine and sued the manufacturer when it died because the instructions did not specify that this would kill it |
| Jury Involvement | The "reasonable person" (common sense) is often a question for the jury |
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What You'll Learn
Common sense in insurance law
In Western Europe, the concept of "common sense" is applied in law, especially in insurance law. This is why European guarantee documents are shorter than their American counterparts. In the US, if a customer misuses a product due to a lack of common sense, they can sue the company if the instructions for use did not explicitly state what could and could not be done with the product. For example, a couple put their cat in a washing machine to "give it a bath", and the cat drowned. They sued the company that sold them the washing machine because the instructions did not specify that washing a cat could lead to its death.
In contrast, Western European law dictates that the customer must use their common sense while using a product. This means that the onus is on the customer to exercise reasonable judgment when using a product, and companies are not held liable for every foreseeable misuse of a product.
In the US, the "reasonable person" standard is often applied in tort law. This means that the judge cannot dismiss a case if a jury could find that the plaintiff acted like a reasonable person. This can lead to companies settling out of court even when the facts suggest that they should win the case.
While common sense is not a legal argument, it can be used as evidence that a ruling is correct. For example, in a California Court of Appeal case, a specially appearing attorney was found to owe the same duties to the client as if they were the counsel of record. The attorney had to ensure that they fulfilled their duties to the client, including preserving the client's rights and making them aware of the ramifications of proceedings in the counsel of record's absence.
In insurance law, common sense and good faith are the leading touchstones of interpreting an insurance policy. An insurance policy is ambiguous when it can "fairly and reasonably" be understood in more ways than one. When the words of the contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made.
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Common sense in product liability
Common sense plays a role in product liability, particularly in the context of Western European laws and US laws. In Western Europe, the concept of common sense in product liability means that consumers are expected to use their common sense while utilising a product. This implies that if a customer misuses a product due to a lack of common sense, they may be held liable if their actions were not a reasonably foreseeable misuse of the product. For instance, in the US, a case may be dismissed if it is deemed that a reasonable person would have acted differently.
In the United States, product liability claims can arise from negligence, strict liability, breach of warranty, and various consumer protection claims. Strict liability, as defined by Prosser, requires that a product defect be "unreasonably dangerous". This implies that the product's defect caused harm or posed a risk, regardless of fault. In such cases, the plaintiff must prove that the defendant manufactured, distributed, or supplied the product, and that it caused injury or damage.
The concept of common sense in product liability also extends to situations where a plaintiff assumes the risk of injury. For example, if a plaintiff is aware that a product is defective and may cause harm, but proceeds to use it anyway, they may be held liable for their actions. However, if the misuse of the product was foreseeable, the manufacturer should provide adequate warnings to prevent such misuse.
Product liability laws also consider the emotional aspects of consumer claims. The theory of "caveat emptor", or "let the buyer beware", previously governed consumer law, but has been replaced by stricter regulations. Today, consumers are protected by laws that require manufacturers, retailers, and distributors to market products that meet ordinary consumer expectations.
While common sense may influence product liability cases, it is not always a sufficient legal argument. Courts may recognise common sense as evidence that a ruling is correct, but it is not typically the basis for legal analysis or rulings.
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Common sense in tort law
The idea of "common sense" in law is a complex one, and it is often assumed that law is a world where common sense has no place. However, in Western Europe, the concept of common sense is used in laws, especially in insurance law. This is reflected in the example of a couple who put their cat in a washing machine and subsequently sued the company that sold them the machine. The couple claimed that it was not specified that washing a cat in a washing machine would lead to its death. This example highlights the role of "common sense" in determining product liability.
In the United States, the concept of "common sense" in tort law is often associated with the idea of reasonableness or what a reasonable person would do. The challenge arises when determining who is a "reasonable person," as this assessment is often left to a jury. This subjectivity can lead to varying outcomes, even in cases with similar facts.
Tort law, in civil law jurisdictions, largely derives from Roman law, while common law jurisdictions base their tort law on customary English tort law. In civil law jurisdictions, both contractual and tortious or delictual liability are typically outlined in a civil code based on Roman Law principles. Delict, a term used to refer to civil wrongs or criminal offences in some civil and mixed law jurisdictions, is comparable to the concept of tort in comparative law.
The main remedy available to plaintiffs under tort law is typically compensation in damages or money. In certain circumstances, such as a continuing tort or when harm is threatened, courts may grant an injunction. Additionally, some jurisdictions may impose specific performance to ensure the defendant fulfils certain legal obligations.
While common sense may influence legal decisions, it is not typically considered a valid legal argument on its own. However, it is important to recognize that common sense plays a role in shaping legal outcomes, even if it is not explicitly stated as the primary basis for a ruling.
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Common sense in legal ethics
While the law is a formal system of rules enforced by governmental institutions, ethics is a broader concept grounded in personal, cultural, and societal values. The two concepts are distinct but interconnected, as legal ethics guides how lawyers behave and make decisions.
In the context of legal ethics, "common sense" can refer to the application of ordinary people's causal judgments outside the law to legal decision-making. This approach has been explored by legal scholars such as HLA Hart and Tony Honoré, who argue that decisions on legal causation may be based on common-sense principles. However, this view has been criticised, with some scholars arguing that legal causation turns exclusively on issues of 'legal policy'.
In practice, judges often invoke "common sense" when deciding on questions of causation, particularly in criminal and private law. For example, a judge might consider whether a defendant's actions were the cause of harm, even if an intervening event occurred.
In the United States, the concept of "common sense" in the law is often associated with the reasonable person standard, which is used in tort law and other areas of law. This standard considers what a reasonable person would do in a particular situation, rather than relying solely on legal analysis.
When it comes to attorney-client relationships, common sense can also play a role. For example, if an attorney appears in court with a client, it is generally understood that an attorney-client relationship has been established, even if the attorney claims otherwise. This is because it would not make logical sense for an attorney to appear in court if they were not representing the client.
In conclusion, while common sense may not be a basis for legal analysis, it does have a place in legal ethics. It can help guide attorneys' behaviour and ensure they fulfil their duties to their clients. Additionally, judges may invoke common sense when making decisions about legal causation, particularly in criminal and private law.
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Common sense gun laws
Common-sense gun laws refer to evidence-based solutions that aim to reduce gun violence and save lives. These laws are often informed by data and research, and they address specific issues related to gun ownership, usage, and safety. While the specific regulations may vary depending on the context and the jurisdiction, here are some examples of common-sense gun laws that have been proposed or implemented in different regions:
Active Shooter Alert Act
The Active Shooter Alert Act, supported by Congressman Joe Morelle, aims to establish a national alert system. This system would enable local law enforcement to quickly inform community members about active shooter incidents, allowing them to seek safety. This legislation is designed to reduce the impact of gun violence on families and communities.
Assault Weapons Ban
The Assault Weapons Ban, or H.R. 1808, seeks to prohibit the sale, transfer, manufacture, and importation of military-style assault weapons and high-capacity ammunition magazines. By restricting access to these deadly weapons, the law aims to reduce the number of mass shootings and protect innocent lives.
Universal Background Checks
Implementing universal background checks for all gun purchases ensures that individuals with a history of violence, mental health issues, or other risk factors are identified and prevented from acquiring firearms. This measure helps keep guns out of the wrong hands and makes it more difficult for criminals and unsafe individuals to obtain weapons.
Safe Gun Storage Laws
Safe gun storage laws, such as H.R. 3509, focus on establishing firearm storage safety standards. These laws encourage or mandate the secure storage of firearms, particularly when minors are present, to prevent accidental shootings and reduce the risk of unauthorized individuals accessing guns.
Extreme Risk Protection Orders
Extreme Risk Protection Laws, or H.R. 3480, encourage states to enact laws that empower law enforcement and families to intervene when an individual exhibits extreme risk factors. This could include removing firearms from individuals who pose a danger to themselves or others, helping to prevent potential tragedies.
While the term "common sense" in law can be subjective and open to interpretation, it generally refers to a standard of reasonableness. In the context of common-sense gun laws, the goal is to implement regulations that balance the rights of responsible gun owners with the need to protect public safety and reduce gun-related harm.
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Frequently asked questions
Common sense law refers to the concept that certain laws are based on the objective "reasonable person" standard, taking into account what a reasonable person would do or foresee.
In Western Europe, there is an expectation that customers use their common sense when using a product. For example, it is foreseeable that a customer might sue a company for not specifying that washing a cat in a washing machine could lead to its death.
In legal ethics, common sense can be applied to situations such as an attorney-client relationship. For example, if an attorney accompanies a client to court, it is implied that an attorney-client relationship has been established, and the attorney must ensure that they fulfill their duties to the client.
Common sense gun laws aim to strike a balance between firearm rights and public safety. Examples include universal background checks and reinstating the assault weapons ban to prevent mentally unstable individuals from acquiring guns.
