How Is It Reasonable, Exactly? 
This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

The slipperiest term of legal language throughout the law, including law school and the MBE, is “reasonable.”

And yet it is the most common, oftenest-used benchmark in almost all areas of the law: “Reasonable person,” “reasonable care,” “unreasonable risk.”

Law students are told from Day 1 that “reasonable people can disagree” on this point or that, and so go to court to help resolve that through the help of a finder of fact and law. And it is that mystical ideal of the “reasonable person” that provides the basis for the standard of care one person owes to another in order to avoid negligence.

Yet, the term is subjective and meanings for “reasonable” are as numerous as there are people and their individual languages: What’s reasonable to CD is unreasonable to MB, and downright senseless (and hateful!) to WJB.

So where is the reason that so many MBE questions require a common understanding of that term “reasonable”?

Perhaps it’s the not-so-subtle psychological component: MBE takers must understand the benchmark of what is “commonly” accepted as “reasonable” either because they are, themselves, “reasonable” within what can be a rather small spectrum of meaning, or at least they have encountered it often enough in society at large to have an understanding of just how the mythical ideal “Reasonable Person” behaves.

But that is a supposition that has no basis in fact, and one that itself may be unreasonable. Consider this fact pattern:

A salesman was employed by a florist, who owned a retail shop adjacent to a large wholesale nursery. The owner of the nursery liked to use a brand-name artificial fertilizer for her plants, although other effective fertilizers were available at comparable prices. She stored a large quantity of the fertilizer in a heap on the nursery’s property, as did many other nursery owners without incident. The fertilizer gave off fumes that caused the salesman to suffer lung irritation. Occasionally, the salesman had to take off from work and seek medical attention. After losing a few hundred dollars in wages and amassing a few hundred dollars in medical expenses, the salesman sued the nursery owner for damages.

My first thought: If he only racked up a few hundred dollars in medical expenses, I sure would like to know the name of his doctor! My second was, what exactly are “ . . . nursery owners without incident?” (Ok, so that’s just a copy-editing “gotcha.”)

But seriously, this example has some issues. I call them problems, but the writers probably don’t.

What exactly is a “large quantity?” A pound or kilogram? 10 pounds? 100 pounds? 1 ton? 10 tons?

That kind of sloppy, vague language in the facts sets MBE takers for a fall right there, requiring a supposition, which they can only solve if their idea of “large quantity” happens to be the same as, or close to, that the of writer’s. Maybe it depends on how a “reasonable” person would define “large quantity.”

The pile of chemical fertilizers (“artificial” = “chemical”) gave off fumes. We are told the fertilizer gave off fumes that caused salesman’s lung condition, so therefore the fertilizer is toxic to humans.

Are we ready? The call of the question for the above fact pattern and answer choices are:

The court is likely to rule in favor of:

A. The salesman, because the nursery owner had equally effective fertilizers available at comparable prices to the fertilizer used.

B. The salesman, because the nursery owner is strictly liable for injuries caused by emissions from her property.

C. The nursery owner, because the selection of the fertilizer was reasonable and it was stored in a reasonable manner.

D. The nursery owner, because the salesman is merely an employee of the florist and does not own the property on which the shop is located.

Throw out A immediately as not being relevant to anything. D is fairly insidious by raising the intangible specter of nuisance. But that would not be the only basis for an action against nursery owner who plays with toxic chemicals in his neighbor’s backyard, so we can throw that one out, too.

So here’s where it gets unreasonable.

In law school, I learned there is strict liability for engaging in ultra-hazardous activities, such as transporting nuclear waste, explosive demolition work, and, yes, storing hazardous chemicals, especially in a residential or commercial area near lots of “foreseeable” victims. Ultra-hazardous “strict liability” activities are those that can’t really be made completely safe no matter what reasonable precautions are taken.

So I liked answer choice B.

Will it surprise to know the correct answer choice for this practice question was C?

“. . . the selection of the fertilizer was reasonable and it was stored in a reasonable manner.”

Excuse me?

Pray, where exactly is the “reasonableness” of storing a “large quantity” of fuming noxious chemicals “in a heap” on property located in a commercial zone crowded with employees and customers alike?

Call me timid, call me overly cautious, call me unreasonable, because that doesn’t really seem very reasonable to me. I think the “reasonable man,” who is the progenitor of the “ordinarily prudent person” that sets the standard for negligent behavior, should find storing a large quantity of fuming noxious chemicals openly in a heap on his commercial property in close proximity to others is inherently unreasonable.

Of course, readers are given the additional fact that other nursery owners also stored large quantities of fuming noxious chemicals openly on their commercial property and they never caused an injury. Lucky them!

Surely, this question did not intend to communicate that because a host of other people do something the same way, that makes it “reasonable.” 
(Go read “Extraordinary Popular Delusions and the Madness of Crowds” by Charles Mackay [http://books.google.com/books/about/Extraordinary_Popular_Delusions_and_the.html?id=tDn1nAEACAAJ])

OK, so what everyone else is doing might be a factor in what regular folks consider reasonable, but only a factor. Human beings and ordinarily prudent people are expected to be somewhat more thoughtful in their behavior than lemmings, even if all too often they are not.

I could go on, but I think the point has been made: I guess I just reasonably disagree with the writers on this one.

And if you do, too, it brings up something else to keep in mind in while completing your practice questions and during the MBE itself: There are going to be “correct” answers with which you have plenty of basis to reasonably disagree. So you are going to get those wrong, and you need to learn to live with that, as frustrating as it is. But don’t worry, because they won’t outnumber the ones you get right!

Another exam tip I’d like to point out is the repetition of the term “reasonable” in the correct answer choice. Be advised this is not a smoking gun or giveaway clue! In fact, it should send up a red flag for the test taker to reread the answer choice carefully in light of the fact pattern. The terms “reasonable” and “unreasonable” get thrown around a lot in MBE questions, and they are often inappropriately paired with other words and concepts to camouflage and distract. One unreasonably misplaced use of the term “reasonable” can often be very tempting, so be careful how you reason.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.