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Responsibility in Negligence: Why the Duty of Care is not a Duty “To Try”

Published online by Cambridge University Press:  20 July 2015

Ori J. Herstein
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Extract

Although equating the duty of care in negligence with a duty to try to avoid negligent outcomes (i.e., a duty to act with reasonable care and with the view or intention of averting harming) has several theoretical and descriptive virtues – primarily offering a promising account of the (moral) responsibility-component in the negligence standard – it is an account that fails to capture the state of the law or to offer a compelling argument for revising the law. The better account of the duty of care is as a duty of reasonable conduct alone. The responsibility-component in the negligence standard does not, therefore, take the form of a duty to try. Alternatively, the responsibility-component is found in the conditions for being subject to the negligence standard: specifically possessing responsibility-capacities and the opportunity to exercise those capacities in compliance with the duty of care.

Keywords

NegligenceResponsibilityMoral responsibilityDuty of care
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 2 , July 2010 , pp. 403 - 428
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2010 

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References

For their comments on previous drafts I am grateful to Keren Azulay, Ittai Bar-Siman-tov, Marc O. DeGirolami, Michael C. Dorf, Yonatan Even, Robert A. Ferguson, Christen Furka, Kent Greenawalt, Miguel Herstein, Uri D. Leibowitz, Shaul Zioni and the referees for the Canadian Journal of Law and Jurisprudence.

1. Violating the negligence standard is a necessary yet not a sufficient condition for liability in negligence. Not all negligent harms give rise to liability, certainly not to legal liability. For a discussion see Hart, H.L.A., Punishment and Responsibility (New York: Oxford University Press, 1968) at 136–57Google Scholar. Moreover, there are defenses from negligence liability, including contributory negligence, comparative negligence and assumption of risk. See Dobbs, Dan B., The Law of Torts, vol. 1 (St. Paul, MN: Westgroup, 2000) at 493–550.Google Scholar

2. Gardner, John, “The Purity and Priority of Private Law” (1996) 46 U.T.L.J. 459 at 486.CrossRefGoogle Scholar

3. Gardner, John, “Obligations and Outcomes in the Law of Torts” in Cane, Peter & Gardner, John, eds., Relating to Responsibility: Essays for Tony Honore (Oxford: Hart, 2001) 111 at 120.Google Scholar

4. To clarify, I say that one must act “safely” only to the extent that one’s actions do not generate a risk forbidden by the duty of care. Under most manifestations of the duty of care one’s actions need be safe only to the extent that they are not unreasonably risky

5. Gardner, supra note 2 at 485.

6. Restatement (Second) of Torts § 324.

7. Section VI develops this idea and explains that while such cases shine a light on the central role that trying to avert harm plays in complying with some instances of the duty of care, they do not for the most part demonstrate that the duty of care gives rise to a duty to try.

8. A tenet reflected in the Restatement of the Law. See Restatement (Second) of Torts § 282 d (pointing out that the negligence standard does not address “conduct which creates liability because of the actor’s intention to invade a legally protected interest of the person injured or of a third person.”). There is a competing minority view according to which negligence involves a mental state of indifference or inadvertence in addition to negligent conduct. For a discussion, see Harper, Fowler V, James, Fleming Jr., & Gray, Oscar S., Harper, James and Gray on Torts (New York: Aspen, 2007) at 428–32Google Scholar. It is not the position I take here.

9. The duty of care does, according to Gardner, restrict not having the mental state comprised in ‘trying’. Yet, I do not think that not having a mental state is a mental state.

10. Gardner, supra note 3 at 119.

11. Coleman, Jules L., Risks and Wrongs (Cambridge: Cambridge University Press, 1992) at 217–20Google Scholar; Honore, Tony, “The Morality of Tort Law—Questions and Answers” in Owen, David G., ed., Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1995) at 73–96, 88-90Google Scholar (suggesting—based on retributive reasons [or rather the lack of such reasons]—insurance as a mechanism for fair distribution of the costs of compensation in cases of no-fault torts, including negligent actors who lacked the capacity of a reasonable person); Pound, Roscoe An Introduction to the Philosophy of Law (New Haven, CT: Yale University Press, 1954) at 91 Google Scholar (viewing the fault requirement in negligence as a “dogmatic fiction”).

12. If responsibility had no role in negligence, negligence would be similar to strict liability. See Hart, supra note 1 at 154-55.

13. Hart, ibid. at 154-55.

14. See ibid. at 227.

15. Raz, Joseph, “Being in the World—Reading Version”, http://sites.google.com/site/josephnraz/ agency,responsibilityandluck (revised version forthcoming in Ratio, 2010).Google Scholar

16. Ibid.

17. Ibid.; Hart, supra note 1 at 227-30 (focusing on the capacity to understand and reason).

18. Raz, Joseph, “Responsibility and the Negligence Standard,” Columbia Public Law Research 09-207 available at SSRN: http://ssrn.com/abstract=1436022 (revised version forthcoming in Oxford Journal of Legal Studies 30 (2010) 1–18).Google Scholar

19. Raz, Joseph, “Agency and Luck,” (Draft, 12 Oct. 2009).Google Scholar

20. Raz, supra note 18 at 5.

21. Ibid. at 23.

22. Ibid. at 22. See also Raz, supra note 19; Raz, supra note 15.

23. Sher, George, Who Knew? Responsibility Without Awareness (New York: Oxford University Press, 2009).CrossRefGoogle Scholar

24. Ibid. at 87.

25. Ibid. at 92.

26. Ibid. at 117-31.

27. Dobbs, supra note 1 at 275.

28. Harper, supra note 8 at 432.

29. In the case of attorney malpractice, the ‘special’ standard of care requires exercising the competence and diligence normally exercised by lawyers in similar circumstances. Restatement (Third) of the Law Governing Lawyers § 52.

30. The standard of conduct in medical malpractice is based on a professional-peer standard. See Dobbs, supra note 1at 631.

31. See Hennings v. Schufeldt, 222 Neb. 416 at 422-23 (1986)Google Scholar (A pedestrian crossing a road between intersections without looking out for passing traffic was found negligently liable for causing his collision with a passing motorbike).

32. See Dobbs, supra note 1 at 276 (“The defendant who intentionally takes a risk may or may not be negligent”).

33. Gardner, supra note 3 at 119.

34. Ibid. at 119-20.

35. Ibid. at 120 [emphasis added].

36. Ibid.

37. Gardner, supra note 2 at 485.

38. UFTA § 4(a)(i).

39. Under New York law a person is guilty of murder in the second degree when, with intent to cause the death of another person, he or she causes the death of such person or of a third person. N.Y. Penal Law § 125.25(1) [emphasis added].

40. John Finnis, “Intention in Tort Law” in Owen, supra note 11 at 236.

41. (1868) 11 Cox C.C. 146, C.C.C.

42. Hart, supra note 1 at 119-20.

43. Ibid. at 119.

44. The criminal law, for example, distinguishes between purpose and knowledge. See Model Penal Code § 2.02(2).

45. According to Kimberly Ferzan, cases wherein foreseeable side-effects are intended are instances of ‘inseparable effects.’ An effect A is ‘inseparable’ from effect B when an intention to A incorporates by its nature an intention to B. When exactly such a relation arises is a complex matter, which Ferzan explores. Ferzan, Kimberly Kessler, “Beyond Intention” (2008) 29 Cardozo L. Rev. 1147.Google Scholar

46. “A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.” Restatement (Second) of the Law of Torts § 398.

47. Reynolds v. May Department Stores Co., 127 F.2d 396 (8th Cir. 1942).Google Scholar

48. The Restatement of the Law of Torts (Third) does not define negligence as requiring actually applying the Hand Formula. However, it does suggest the Hand Formula as a “primary factor” for ascertaining negligent conduct: “A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.” Restatement (Third) of the Law of Torts: Liability for Physical Harm § 3 (Proposed Final Draft No. 1, 2005). Such a requirement may suggest that as a matter of fact—even if not categorically—the duty of care requires implementing the considerations constitutive of the Hand Formula. The Hand Formula finds an actor negligent “if the burden of taking adequate precautions against the harm is outweighed by the probable gravity of the harm multiplied by the probability that the harm will occur”. Black’s Law Dictionary 732 (8th ed. 2004).

49. See Baltimore, & v. Goodman, O. R. Co., 275 U.S. 66 at 70 (U.S. 1927) (Holmes, J.)Google Scholar (A victim whose truck was struck by a train was found negligent in causing his own death by failing to establish whether a train was approaching before crossing the railroad tracks).

50. See Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y. 2d 376 at 386 (N.Y. 1976)Google Scholar (“Also relevant, but by no means exclusive, in determining whether a manufacturer exercised reasonable skill and knowledge concerning the design of the product is whether he kept abreast of recent scientific developments”).

51. See Thompson v. Lamar, 322 Mo. 514 at 541 (Mo. 1929)Google Scholar (“An electric light and power corporation, whether private or municipal, is chargeable with negligence per se in maintaining uninsulated or defectively insulated, wires at a place where it has reason to anticipate that persons may lawfully and rightfully be, and where such persons may likely come in contact with its wires”).

52. See Stanton v. Astra Pharmaceutical Products, Inc., 718 F 2d 553 at 560 (3d Cir. Pa. 1983).Google Scholar

53. See Crowe v. Gaston, 134 Wn. 2d 509 (Wash. 1998)Google Scholar (A court found that a commercial vendor owed a duty of care to the injured party based upon the violation of a Washington statute forbidding the sale of liquor to a minor).

54. In fact, occasionally custom is adopted as the standard for reasonably risky conduct. See Harper, supra note 8 at 653-73.

55. Hart, supra note 1 at 154-55.

56. Dobbs, supra note 1 at 297-98; Harper, supra note 8 at 489-90; Restatement (Second) of the Law of Torts § 283A, cmt. a.

57. Restatement (Second) of the Law of Torts § 283 A.

58. See, e.g., Harper, supra note 8 at 485-90.

59. Dobbs, supra note 1 at 291; Restatement (Second) Torts § 283 C, cmt. d.

60. There are degrees of intoxication and corresponding degrees of how intoxication impairs the capacities for responsibility. For purposes of simplicity these nuances are not weaved into the analysis.

61. Restatement, supra note 59.

62. Restatement (Second) of the Law of Torts §§ 283 B, 289, cmt. N.

63. Children engaged in dangerous adult activities, such as operating a car, boat, machine, snowmobile or plane, see Dellow v. Pearson, 259 Minn 452 (1961)Google Scholar, or in inherently dangerous activities, see Restatement (Second) of the Law of Torts § 283A, are mostly held to the regular standard of the reasonable person and not to the special standard tailored for minors. The justifications for this practice are mostly based on policy considerations. Such considerations include protecting children from their own contributory negligence, encouraging child development and protecting children’s future as adults. See Dobbs, supra note 1 at 295-97.

64. Raz, Joseph, The Authority of Law (Oxford: Oxford University Press, 1979) at 213.Google Scholar

65. Raz, ibid. at 214; Marmor, Andrei, “The Rule of Law and Its Limits” (2004) 23 Law & Phil. 1 at 5Google Scholar. See also Hart, H.L.A., “Lon L. Fuller: The Morality of Law” in Essays on Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 343 at 349-51.CrossRefGoogle Scholar

66. Fuller, Lon L., The Morality of Law (New Haven CT: Yale University Press, 1969) at 70–81.Google Scholar

67. Hart, supra note 1 at 154-55.

68. Competing considerations include the expectations of others, difficulty in proving a subjective standard and maximizing overall social welfare. Hart, supra note 1 at 153. See also Oliver Holmes, Wendell, The Common Law (New York: Dover Publications, 1991) at Lecture IIIGoogle Scholar (emphasizing the problematic probative implications of adopting a subjective standard of conduct in negligence).

69. Assuming that strict liability indeed comprises a duty at all and is not merely a pure liability rule.

70. 118 N.J. 306 at 315-16 (N.J. 1990) (A charge was based on a provision that forbade operating a vehicle while intoxicated and as such applied a strict liability standard that did not allow for a defense of involuntary intoxication).

71. Restatement (Second) of the Law of Torts § 895I.

72. Ibid. §504.

73. Discounting for the possibility of derivative responsibility grounded in past corporate actions.

74. Such as the theories of Sher and Raz discussed above.