Friday, July 22, 2011

What is "reasonable" conduct??

As a frequent forensic expert, I am often called to testify regarding whether a consumer, employee, supervisor, or organization’s behavior is “reasonable.”  That is the basic legal standard.  If someone acts reasonably, they are not guilty of negligent behavior.  If they act unreasonably, then they are guilty.

So how do you define reasonable behavior?  A recent column by Dan Markiewicz illustrates some of the ways that we define reasonableness for employers when it comes to keeping employees safe.

To start, organizations need to follow government regulations, guidelines (even when not required by law), voluntary industry standards, common industry practices, common trade or professional practices, and common sense.   Notice that they don’t need to follow their industry’s best practices, just the ones that are considered the common, acceptable, decent practices. And they don't just need to follow the practices required by law, there is more to "reasonableness."  So it is in between the regulatory minimum and the industry's best practices.  But where?
Another challenge is when an organization claims that they didn't know that a hazard existed.  If the organization is willfully (intentionally) ignorant of a hazard, the law considers it as if they knew about it.  They can’t use as an excuse that they didn’t know about a hazard if reasonable practices would have identified it and they didn’t use these reasonable practices.  I see this a lot in companies that don’t keep injury statistics.  They figure if they don’t know that x% of their warehouse workers overexert their backs, then they didn’t “know” there was a problem and therefore are justified for not having fixed it. But it is a common practice in industry and considered minimally acceptable behavior in the safety discipline to keep track of injuries so that trends can be identified.  So an organization can’t use this as an excuse. 

Another piece of evidence we look for when it comes to “reasonableness” is follow through.  An organization can have all the rules and policies they want, but if they don’t implement or enforce them to a reasonable degree, they have not acted reasonably.  There are many examples of organizations being “paper tigers” when it comes to safety.  Many integrate safety into their company mission statement, but then let it hang there.  Some have safety training programs that are so irrelevant to the work the employee actually does that it would take an expert to figure out how to apply it.  Sometimes there are supervisors who pay lip service to the safety metric but really whip it up when it comes to meeting deadlines or minimizing resources. Again, this is not considered "reasonable" conduct.

But when organizations are not paper tigers, when they create real safety policies, safety training, and safety supervision policies and procedures, then they have nothing to worry about.  They have acted reasonably.  Even if they haven’t used best practices, they are not legally responsible if they have at least used reasonable practices in their surveillance, training, and supervision.  That’s where I come in.  I evaluate the behavior of the employer, employee and/or customer and determine who acted reasonably and who didn’t.   Then I explain that to the jury.  They ultimately decide, but it is up to me to explain what the industry considers "reasonable" and how this is different from the regulatory minimum and the state of the art best practices.