This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to improving negligent wrongdoing has caused aggravation over the years and, indeed, given rise to a state of torbidity.
The judiciary can more easily resolve this evidentiary quagmire by shifting its judicial attention and analysis to the tort of nuisance. With alarming social indicators and statistical projections, confirming the fact that strong resuscitation efforts for the ordinary person model is not forthcoming—and its actual morbidity will increase—it remains for the courts to exercise their parens patriae powers to both guide and protect those who are cognitively impaired and who are, consequently, economically disadvantaged.
Aided by the Restatement (Second) of Torts position on establishing liability for an action in nuisance, the role of the courts in assessing the reasonableness of conduct or, as the case may be, the unreasonableness of conduct, the judiciary can meet its responsibility to administer and direct efficiently and expeditiously the course of justice. Theories of economic efficiency—solidified by cost/benefit analysis—are imbedded in the framework of analysis required in the Restatement’s test for proving nuisance. Rather than act within the shadows of the normative standard demanded traditionally for testing the conduct of an average, ordinary, reasonable person under the tort of negligence, nuisance provides a relatively simple and objective list of factors (utilities) to be evaluated in making a determination of liability. Accepting this posture will go far toward establishing a lingua franca for interpreting and applying the test of reasonableness.
George P. Smith & William P. Lane, Re-Evaluating the Demise of the Average, Ordinary, Reasonable Person: Unintended Consequences in the Law of Nuisance, 67 Cath. U. L. Rev. 699 (2018).