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NEGLIGENCE AND ACCOMMODATION

Published online by Cambridge University Press:  24 April 2017

Avihay Dorfman
Avihay Dorfman*
Affiliation:
Tel Aviv University Buchmann Faculty of Law, dorfman@post.tau.ac.il
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Abstract

Whereas the Restatement of Torts and leading economic and justice-based approaches to explaining the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively fixed amount of care, whereas plaintiffs are generally assessed using a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant's negligence with a favorable assessment of plaintiff's negligence, means that the victim gets to fix the terms of the interaction. This argument resonates with the powerful egalitarian idea of accommodating, rather than overlooking, relevant differences; different treatment is necessary for the duty of reasonable care to give effect to the qualitative difference between the plaintiff's life and limb and the defendant's autonomy. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, or to relate as substantive equals.

Type
Research Article
Information
Legal Theory , Volume 22 , Issue 2 , June 2016 , pp. 77 - 123
Copyright
Copyright © Cambridge University Press 2017 

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References

1. See infra notes 32, 36–37, and accompanying text.

2. See infra notes 38–39 and accompanying text.

3. Compare Posner, Richard A., A Theory of Negligence , 1 J. Legal Stud. 29 (1972)CrossRefGoogle Scholar with ERNEST J. WEINRIB, The Idea of Private Law (1995), at 147–152. The respective approaches of the economic and the corrective justice theories purport to derive concrete recommendations concerning how courts should proceed with determining whether the defendant or the plaintiff is at fault. To be sure, other tort theories have offered their own distinctive takes as to how to divine the obscure notion of reasonable care. Just like lawyer-economists and corrective justice theorists, they do so by construing the standard in question in light of the connection they find to exist between reasonableness and diverse ideas such as Rawlsian fairness ( Keating, Gregory C., Reasonableness and Rationality in Negligence Theory , 48 Stan. L. Rev. 311 (1996))CrossRefGoogle Scholar and the community's positive morality (Patrick J. Kelley, Who Decides? Community Safety Conventions at the Heart of Tort Liability, 38 Clev. St. L. Rev. 315). For reasons that will become clear in due course, I shall not discuss these accounts in detail.

4. See Guido Calabresi, The Costs of Accidents (1970), at 144–160; William M. Landes & Richard A. Posner, The Economic Structure of Tort Law (1987), at 123; Porat, Ariel, Misalignments in Tort Law , 121 Yale L.J. 82, 103–105 (2011)Google Scholar; Ben-Shahar, Omri & Porat, Ariel, Personalizing Negligence Law , 91 N.Y.U. L. Rev. 627 (2016)Google Scholar.

5. See Weinrib, supra note 3, at 177; Coleman, Jules & Ripstein, Arthur, Mischief and Misfortune , 41 McGill L.J. 91, 109, 112 (1995)Google Scholar.

6. Why do I focus on economic and corrective justice theories but ignore another prominent theoretical approach, namely, the civil recourse theory? The most immediate reason is that this approach has not developed a sufficiently comprehensive account of the standard of care. See Zipursky, Benjamin C., Sleight of Hand , 48 Wm. & Mary L. Rev. 1999, 2033–2040 (2007)Google Scholar; Zipursky, Benjamin C., Reasonableness In and Out of Negligence Law , 163 U. Penn. L. Rev. 2131 (2015)Google Scholar; Solomon, Jason M., Judging Plaintiffs , 60 Vand. L. Rev. 1749 (2007)Google Scholar (extending the civil recourse theory to capture tort doctrines pertaining to the conduct of plaintiffs).

7. The relational structure of primary duties in property law and tort law has been criticized in J. E. Penner, The Idea of Property in Law (1997), at 23–31, and Keating, Gregory C., The Priority of Respect over Repair , 18 Legal Theory 293 (2012)CrossRefGoogle Scholar, respectively. It is beyond the scope of my argument here to address this critique. I address it elsewhere, with special emphasis on property law and proprietary torts. See Dorfman, Avihay, The Society of Property , 62 U. Toronto L.J. 563 (2012)CrossRefGoogle Scholar; Dorfman, Avihay, Private Ownership and the Standing to Say So , 64 U. Toronto L.J. 402 (2014)CrossRefGoogle Scholar.

8. See Vaughan v. Menlove, 132 Eng. Rep. 490 (Ct .Com. Pl. 1837).

9. Oftentimes, a subjective assessment of care proceeds in two stages: first, creating a modified standardized person with like disabilities; and second, measuring the conduct of the plaintiff against this modified standard. Each of these stages falls within the definition offered in the text above of subjective assessment of care.

10. For the purpose of the present argument, it does not matter what counts as the “reasonable,” the “average,” or the “normal” person. What matters is that the reasonable, average, or normal person expresses an objective valuation of human capacities, that is, a valuation that does not turn on “the idiosyncrasies of the particular person whose conduct is in question.” Glasgow Corp. v. Muir, [1943] AC 448, 457 (HL).

11. See Vaughan, 132 Eng. Rep. at 493 (judgment of subjective fault is “as variable as the length of the foot of each individual”); Green, Leon, The Negligence Issue , 37 Yale L.J. 1029, 1029–1030 (1928)CrossRefGoogle Scholar; Steven Shavell, Economic Analysis of Accident Law (1987), at 74.

12. Concerning nondisabled defendants, see The Germanic, 196 U.S. 589, 595–596 (1905). Concerning the rule with respect to the nondisabled plaintiff, see Reynolds v. New York Central & H.R. Co., 13 Sickels 248 (N.Y. 1874); Noel v. McCaig, 258 P.2d 234, 241 (Kan. 1953); Porter v. Cook County, 355 N.E.2d 561, 565 (Ill. App. 1976).

13. Cf. Seidelson, David E., Reasonable Expectations and Subjective Standards in Negligence Law: The Minor, the Mentally Impaired, and the Mentally Incompetent , 50 Geo. Wash. L. Rev. 17, 30 (1981)Google Scholar.

14. A somewhat similar factual situation appears in Thomas v. Metzendorf, 128 A. 162 (N.J. 1925).

15. Indeed, it also applies to cases in which the plaintiff fails to exercise due care over both himself and others. See infra text accompanying notes 67–68.

16. The fact that driving (as in Roger's first case) is a heavily regulated, and especially dangerous, activity does not make it an unusual case. In particular, driving is not distinctively insensitive to modified standards of care. An objective standard of care applies to defendants, drivers or otherwise, as cases like Vaughan v. Menlove, 132 Eng. Rep. 490 (Ct. Com. Pl. 1837) and The Germanic, 196 U.S. 589, 595–596 (1905) demonstrate. Furthermore, courts in fact do modify—viz, render more subjective—the standard of care upon assessing contributory or comparative negligence on the part of drivers. See infra text accompanying notes 82–84.

17. W. Page Keeton et al., Prosser and Keeton on Torts (5th ed., 1984), §32, at 176.

18. For more on the inevitably controversial necessity of choosing between an objective and subjective measurement of due care, see Guido Calabresi, Ideas, Beliefs, Attitudes, and the Law (1985), at 23–35. Calabresi objects to the objective standard of reasonable care based on egalitarian concerns for “equal access,” “equal participation,” and “equal treatment” of disabled tortfeasors. Id. at 35, 39, 40, 42, 67. Instead, Calabresi defends a subjectively fixed standard of care for risk creators backed up by a publicly funded compensation scheme to ensure that tort victims would not bear an excessive burden as a result of implementing a subjective standard. I take stock of this solution in Dorfman, Avihay, Reasonable Care: Equality as Objectivity , 31 Law & Phil. 369, 387 n.47 (2012)CrossRefGoogle Scholar. There, I argue that an objective standard of defendant care is part of the egalitarian solution; in the present argument I seek to explain, among other things, why the standard of plaintiff self-care must be fixed subjectively. Taken together, my overall ambition is to defend the asymmetrical valuation of reasonable care across the defendant/plaintiff divide on, broadly speaking, egalitarian grounds.

19. As mentioned above, I shall refer to subjective measurement of reasonable care whenever courts introduce accommodations to the standard of reasonable care to reflect the peculiar traits of the person whose conduct is being evaluated.

20. See also Calabresi, supra note 18, at 32–33.

21. See Schwartz, Gary T., Contributory and Comparative Negligence: A Reappraisal , 87 Yale L.J. 697, 722–723 (1978)CrossRefGoogle Scholar; Kenneth W. Simons, Contributory Negligence: Conceptual and Normative Issues, in Philosophical Foundations of Tort Law (David G. Owen ed., 1995), at 461, 476–477, 480; Keating, supra note 3, at 371; Robert Stevens, Should Contributory Fault Be Analogue or Digital?, in Defenses in Tort (Andrew Dyson et al. eds., 2015), at 247, 253; Zipursky, Reasonableness, supra note 6, at 2162 n.81. Cf. Geistfeld, Mark, Reconciling Cost-Benefit Analysis with the Principle that Safety Matters More than Money , 76 N.Y.U. L. Rev. 114, 128 (2001)Google Scholar (driving a wedge between considerations pertaining to defendant care—“the safety principle”—and those that focus on “the amount of care individuals should take for their own protection”). Professor Richard Wright also argues that “no issue of Right immediately arises” in connection with contributory negligence. However, he does acknowledge that considerations of fairness (or, as he prefers, Kantian Right) “arise[] indirectly and appl[y] in a much more limited manner.” Richard W. Wright, The Standards of Care in Negligence Law, in Philosophical Foundations of Tort Law (David G. Owen ed., 1995), at 249, 259. I argue, by contrast, that they arise directly and, more precisely, that primary and contributory negligence are interdependent.

22. Schwartz, supra note 21, at 722–723; Simons, supra note 21, at 476–477, 480; Keating, supra note 3, at 371; Stevens, supra note 21, at 253; Zipursky, Reasonableness, supra note 6, at 2162 n.81. For support in the case law for the proposition that a plaintiff's fault marks a prudential, rather than a moral, failure, see Welsh v. Jordan, 194 A.2d 841, 844 (Me. 1963); Cowan v. Doering, 545 A.2d 159, 163 (N.J. 1988); and Hofflander v. St. Catherine's Hospital, 664 N.W.2d 545, 566 (Wis. 2003).

23. Keating, supra note 3, at 371.

24. See, e.g., Simons, supra note 21, at 475 (acknowledging that the defendant incurs the cost of the precaution taken by the plaintiff “in the form of legal liability to the plaintiff for that injury”).

25. Schwartz, supra note 21, at 722–723; Keating, supra note 3, at 371; Wright, supra note 21, at 259; Stevens, supra note 21, at 253.

26. That said, in his most recent account of comparative negligence from a corrective justice perspective, Ripstein seems to make one aspect of the interdependence thesis (viz, that of the plaintiff's impact on defining the scope of liability) central while overlooking the other one (viz, that of the plaintiff's impact on defining what counts as negligence in the first place). Arthur Ripstein, Private Wrongs (2016), at 105–106, 121–122.

27. See, e.g., Kelley, Patrick, Infancy, Insanity, and Infirmity in the Law of Torts , 48 Am. J. Juris. 179, 204 (2003)CrossRefGoogle Scholar; Jacobi, John V., Fakers, Nuts, and Federalism: Common Law in the Shadow of the ADA , 33 U.C. Davis L. Rev. 95, 103–104 (1999)Google Scholar.

28. Keeton et al., supra note 17, at 175. An earlier version appears in Seavey, Warren A., Negligence—Subjective or Objective? , 41 Harv. L. Rev. 1, 13 (1927)CrossRefGoogle Scholar (“In physical characteristics, the standard man appears to be identical with the actor.”).

29. Restatement (Third) of Torts: Liability for Physical Harm (2010), §11(a).

30. See, e.g., Perry v. Fredette, 261 A.2d 431, 432 (N.H. 1970) (“The standard of care applied to . . . persons with physical disabilities is more flexible than that applied to the adult without disabilities.”); see also Keeton et al., supra note 17, §32, at 175–176 (“The person who is blind or deaf, or lame, or is otherwise physically disabled, is entitled to live in the world and to have allowance made by others for his disability, and the person cannot be required to do the impossible by conforming to physical standards which he cannot meet.”).

31. See, e.g., Muse v. Page, 4 A.2d 329, 331 (Conn. 1939) (defining “reasonable care” as the care “an ordinarily prudent person with a like infirmity would exercise under the same or similar circumstances”).

32. See 3 Fowler V. Harper, Fleming James, Jr., & Oscar S. Gray, The Law of Torts (2d ed., 1986), §16.7, at 421 (“The subjective standard finds its most complete acceptance in the case of physical characteristics.”).

33. This watered-down requirement is by definition subjective since it allows the idiosyncrasy of the particular actor to fix, in some measure, the appropriate amount of care.

34. The illustration draws on Sleeper v. Sandown, 52 N.H. 244 (1872).

35. See Mahan v. State, 191 A. 575, 580 (Md. 1937) (The law imposes on drivers with short stature a “duty of exercising greater watchfulness to avoid injuring others . . . than would be necessary for one of normal stature.”).

36. Dan B. Dobbs, The Law of Torts (2000), §19, at 282.

37. Id., §19 at 283. An ambiguity of this nature can be found in Keeton et al., supra note 17, §32, at 176 (noting that a blind person, whose disability exemplifies the category of physical disability, “must take the precautions, be they more or less, which the ordinary reasonable person would take if he were blind”) (emphasis added).

38. Restatement (Third) of Torts: Liability for Physical Harm (2010), §11 cmt. b.

39. Id. A similar ambiguity appears in its predecessor. See Restatement (Second) of Torts (1965), §283c cmt. c (observing that “[a] person under . . . permanent physical disability may be required, under particular circumstances, to take more precautions than one who is not so disabled, while under other circumstances he may be required to take less”).

40. Compare Traphagan v. Mid-Am. Traffic Marking, 555 N.W.2d 778, 787 (Neb. 1996) (“a reasonably careful person with a like disability may be required to put forth a greater degree of effort than would be necessary by others in order to exercise ordinary care under the circumstances”) with Davis v. Feinstein, 88 A.2d 695, 696 (Pa. 1959) (“A blind person is not bound to discover everything which a person of normal vision would.”).

41. It is perhaps possible to argue that the line is drawn between known and unknown physical disabilities. A person who is reasonably unaware of her disability (say, a motorist having an unexpected seizure) is not required to meet the standard of reasonable care. Whereas, it may be supposed, the conduct of a person with a known disability is assessed by reference to an objective standard of care. But this distinction is incorrect on its own terms because known disabilities do not imply an objective standard of care, as I have already observed in the main text above. Moreover, the distinction is superficial because most cases of unknown disability (such as heart attack and seizure) belong to a more general category of causes that defeat tort responsibility in any system of tort liability (including strict liability). This category consists of causes such as force majeure, nonavoidability, and unforeseeability, all of which represent what can be called, following Jules Coleman, ineffective agency. See Jules L. Coleman, The Practice of Principle (2001), at 50. In short, physical disability is not a defining feature of it. And it is certainly not the reason why a subjective standard may apply—a driver having an unforeseeable seizure may be excused from discharging the duty of reasonable care not because of the seizure as such but because she could not preempt its consequences, say, by taking a taxi. See Ford v. Carew & English, 200 P.2d 828, 833 (Cal. Ct. App. 1948) (“if the jury believed that the accident was without any negligence of defendants and due to an unanticipated heart attack of the defendants’ agent, it would be an unavoidable accident”) (emphasis added); Caroll v. Bouley, 156 N.E.2d 687 (Mass. 1959) (an unforeseeable seizure rendering a defendant-motorist unable to control his motor vehicle is not negligence); McCall v. Wilder, 913 S.W.2d 150, 154 (Tenn. 1995) (observing that “[t]he generally accepted approach [across the nation] is to accept as a defense the sudden loss of physical capacity or consciousness while driving provided that the loss of capacity or consciousness was unforeseeable”). Cf. Dobbs, supra note 36, at 282 (no liability for harm inflicted by one who is “reasonably unaware of a physical limitation or disability until it results in harm”). A similar rule holds in English common law tort. See Mansfield v. Weetabix, [1998] 1 WLR 1263 (CA).

42. Notable exceptions to the ambiguous understanding of the law's operation with respect to the distinction between the physically disabled injurer and victim are Calabresi, supra note 18, at 32–33; Wright, supra note 21, at 257–258.

43. Seavey, supra note 28, at 14–15; Restatement (Second) of Torts (1965), §283C; Keeton et al., supra note 17, §32, at 175–176; Dobbs, supra note 36, at 281–284. The Reporter's Note (comment b) to Restatement (Third) of Torts: Physical & Emotional Harm (2010), §11, includes reference to sixteen cases (of which fourteen are cited and analyzed in various places in this article). I do not include this source among the canonical statements because of its ambivalence. The Reporter's Note lumps together these cases in support of the Restatement's ambiguous approach to the standard of care as applied to the physically disabled person: that this standard can sometimes be advantaging and sometimes disadvantaging without specifying what accounts for the “sometimes.”

44. These cases, cited in Seavey, supra note 28, at 14 n.14; Restatement (Second) of Torts(1965), §283C; Keeton et al., supra note 17, at 175–176 nn.16–20; Dobbs, supra note 36, at 281–284 nn.2–4, 6, are: Shepherd v. Gardner Wholesale, Inc., 256 So.2d 877, 882 (Ala. 1972) (impaired vision); St. Louis, I. M. & S. Ry. Co. v. Maddry, 21 S.W. 472, 474 (Ark. 1893) (blind plaintiff); Pennington v. S. Pac. Co., 304 P.2d 22, 29–30 (Cal. Ct. App. 1956) (one-eyed plaintiff); City of Denver v. Willson, 254 P. 153, 155 (Colo. 1927) (lame plaintiff); Goodman v. Norwalk Jewish Center, 139 A.2d 812, 815 (Conn. 1958) (same); Wray v. Fairfield Amusement Co., 10 A.2d 600 (Conn. 1940) (plaintiff suffering from a bone condition); Muse v. Page, 4 A.2d 329, 331 (Conn. 1939) (aged and poor-sighted plaintiff); Kerr v. Connecticut Co., 140 A. 751, 752 (Conn. 1928) (deaf plaintiff); Borus v. Yellow Cab Co., 367 N.E.2d 277, 282 (Ill. App. Ct. 1977) (physically disabled plaintiff); Memorial Hospital v. Scott, 300 N.E.2d 50, 56–57 (Ind. 1973) (plaintiff suffering from sclerosis); Apperson v. Lazro, 87 N.E. 97, 99 (Ind. Ct. App. 1909) (blind plaintiff); Balcom v. City of Independence, 160 N.W. 305, 308–310 (Iowa 1916) (same); Hill v. City of Glenwood, 100 N.W. 522, 523–524 (Iowa 1904) (same); Bennett v. State, 503 So.2d 1022 (La. Ct. App. 1987) (aged plaintiff); Garner v. Crawford, 288 So.2d 886, 888 (La. Ct. App. 1973) (same); Keith v. Worcester & B. V. St. R. Co., 82 N.E. 680, 681 (Mass. 1907) (blind plaintiff); Smith v. Wildes, 10 N.E. 446, 448 (Mass. 1887) (same); Jakubiec v. Hasty, 59 N.W.2d 285 (Mich. 1953) (deaf-mute plaintiff); Hefferon v. Reeves, 167 N.W. 423, 424 (Minn. 1908) (blind plaintiff); Bernard v. Russell, 164 A.2d 577, (N.H. 1960) (aged plaintiff); Stephens v. Dulaney, 428 P.2d 27, 33 (N.M. 1967) (plaintiff with no sense of smell), overruled by Williamson v. Smith, 491 P.2d 1147 (N.M. 1971); Cook v. City of Winston-Salem, 85 S.E.2d 696, 700–701 (N.C. 1954) (blind plaintiff); Mitchell v. Seaboard Air Line R. Co., 68 S.E. 1059, 1059 (N.C. 1910) (deaf plaintiff); Rosser v. Smith, 133 S.E.2d 499, 503–504 (N.C. 1963) (aged plaintiff with a hearing disadvantage); Plunkett v. Brooklyn Heights Railroad Co., 114 N.Y.S. 276 (1908), aff'd per curiam, 92 N.E. 1098 (N.Y. 1910) (aged plaintiff); Harris v. Uebelhoer, 75 N.Y. 169, 175–176 (1878) (blind plaintiff); Fletcher v. City of Aberdeen, 338 P.2d 743, 746 (Or. 1959) (blind plaintiff); Mackie v. McGraw, 191 P.2d 403 (Or. 1948) (plaintiff with a hearing disadvantage); Weinstein v. Wheeler, 271 P. 733, 734 (Or. 1928) (blind plaintiff); Felton v. Horner, 37 S.W. 696, 697 (Tenn. 1896) (aged plaintiff); Texas & N.O.R. Co. v. Bean, 119 S.W. 328, 349 (Tex. Civ. App. 1909) (plaintiff with a deformed foot); Brunner v. John, 274 P.2d 581 (Wash. 1954) (an aged plaintiff); Rhimer v. Davis, 218 P. 193 (Wash. 1923) (deaf plaintiff); Kitsap Cty. Transp. Co. v. Harvey, 15 F.2d 166, 168 (9th Cir. 1927) (aged plaintiff).

45. See Isenberg v. Ortona Park Recreational Ctr., Inc., 160 So.2d 132, 136 (Fla. App. 1964) (impaired physical faculties on the part of the plaintiff must figure in the valuation of contributory negligence); Noel v. McCaig, 258 P.2d 234, 241 (Kan. 1953) (noting that a “deficiency in physical capabilities” must be taken into account in assessing contributory negligence); Gill v. Sable Hide & Fur Co., 4 S.W.2d 676 (Ky. App. 1928) (poor-sighted plaintiff); Ham v. City of Lewiston, 47 A. 548 (Me. 1900) (poor-sighted plaintiff); O'Flaherty v. Union Ry. Co., 45 Mo. 70 (1869) (stating that “the lame and infirm . . . are entitled to the use of the streets, and more care must be exercised towards them by persons controlling or managing cars and vehicles than towards those who have better powers of motion”); Buttelli v. Jersey City, H. & R. Elec. Ry. Co., 36 A. 700, 701 (N.J. 1896) (plaintiff who was a “little deaf”); Stout v. Wagner, 96 N.E.2d 50 (Ohio App. 1950) (aged plaintiff); Davis v. Feinstein, 88 A.2d 695 (Pa. 1952) (blind plaintiff).

46. See also 3 Harper et al., supra note 32, at 428 n.17 (“Defendants rarely if ever attempt to interject their physical disabilities in order to escape or mitigate the standard of the reasonably prudent person.”). Again, my findings do not consider the case of sudden and unexpected illness (such as seizure or heart attack) to be a legitimate member of the class of physical disability. See supra note 41.

47. Three cases of a physically disabled tortfeasor appear in the sources mentioned in supra note 44 (save, again, for sudden, unexpected illness). One of them is resolved on no-duty grounds, and thus does not turn on the question of the appropriate standard of care, which is a question concerning what constitutes a breach of the duty. See Roberts v. State, 404 So.2d 1221, 1226 (La. 1981) (dismissing for no-duty reasons a suit against the state for failure to instruct a blind vendor to walk around using a cane while on the state's premises). The other two explicitly disregard the disability of the tortfeasor for the purpose of determining negligence. See Mahan v. State, 191 A. 575, 580 (Md. 1937) (“It is true that persons of small stature may and do lawfully operate automobiles, but if that condition makes it more difficult for them to discover the presence of children, or objects in the highway, it imposes upon them the duty of exercising greater watchfulness to avoid injuring others also in the lawful use of the highway than would be necessary for one of normal stature.”); Masters v. Alexander, 225 A.2d 905, 909 (Pa. 1967) (“To drive with vision so defective that one cannot detect a bicycle until within 10 feet of it is an act of negligence as flagrant as driving with both hands off the wheel.”).

48. See Poyner v. Loftus, 694 A.2d 69, 71–73 (D.C. 1997) (imposing an objective standard of reasonable care on a blind plaintiff); Sanders v. Walden, 217 S.W.2d 357 (Ark. 1949) (indirectly, acknowledging an objective standard of reasonable care for a plaintiff of small stature); Winn v. City of Lowell, 83 Mass. 177 (1861) (objective standard of reasonable care for a poor-sighted plaintiff); King v. Investment Equities, Inc., 264 So.2d 297, 301 (La. Ct. App. 1972) (objective standard of reasonable care for the physically disabled plaintiff); Mark's Adm'r v. Petersburg R. Co., 12 S.E. 299, 301 (Va. 1891) (objective standard of reasonable care for the blind plaintiff); Smith v. Sneller, 26 A. 2d 452, 454 (Pa. 1942) (objective standard of reasonable care for the blind plaintiff); but see Argo v. Goodstein, 265 A.2d 783, 788 (Pa. 1970) (subjective standard of reasonable care for the blind plaintiff).

49. See, e.g., Peter Cane, Atiyah's Accidents, Compensation and the Law (8th ed., 2013), at 53 (observing that under English common law, “[t]he test of negligence as applied to the conduct of claimants is more personalized than the test of negligence as applied to defendants”); Glanville L. Williams, Joint Torts and Contributory Negligence (1951), at 353 (observing that “[i]n theory the same standard should be required of a plaintiff . . . but one cannot help feeling in reading the [English] cases that the actual standard required has been lower”).

50. Focusing on normative rather than conventionalist approaches to the standard of reasonable care such as the economic or corrective justice approach is important for another reason. Even tort scholars who view the reasonable care standard in terms of a social fact about the (conventional) rules of safety in a particular community would eventually have to account for the inevitably normative underpinning of these rules.

51. There can be other proxies as well (such as the imposition of state taxes). According to William Landes and Richard Posner, however, negligence law's standard of care is a superior alternative to the Pigouvian state tax on negative externalities. Landes, William M. & Posner, Richard A., The Positive Economic Theory of Tort Law , 15 Ga. L. Rev. 851, 854 (1980)Google Scholar.

52. The Learned Hand formula reads:

[I]f the probability be called P; the injury, L; and the burden [of taking adequate precautions], B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.

United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). The economic interpretation has been articulated in Posner, supra note 3.

53. I assume that the costs of compensating for his poor reflexes (say, by taking a taxi or driving slower) are not trivial for him. The difficulty with deficient caring skills like poor reflexes comes into being only insofar as there are no ready-made substitutable means of discharging care for reflexes.

54. This last point has recently been challenged by lawyer-economists who argue that resort to new information technologies, such as big data, may significantly lower the costs of devising a purely personalized standard of due care to risk creators and risk takers alike. See Ben-Shahar & Porat, supra note 4.

55. Landes & Posner, supra note 4, at 126–128.

56. Id. at 124 (noting that the economic analysis of the due care standard applies to the potential injurer as well as the potential victim).

57. Id., at 126.

58. The discussion in the main text focuses on (what I take as) the standard economic analysis of negligence law. It can be argued against this analysis that, in some cases, there is no economic justification for imposing a legal burden to take precautions on the potential victim. This is because when faced with a life-and-death situation, rational victims do not need legal incentives (in the form of comparative fault) to act cautiously. Note that were this true (though I doubt it is; after all, potential injurers often create risk of serious harm to their near and dear), it would reinforce my critique of the standard economic analysis by adding another, unrelated reason for rejecting the symmetrical treatment of defendant and plaintiff care.

59. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).

60. Ronald H. Coase, The Problem of Social Cost, 3 J. L. & Econ. 1 (1960).

61. Richard A. Posner, Economic Analysis of Law (7th ed., 2007), at 191.

62. Geistfeld, Mark, Negligence, Compensation, and the Coherence of Tort Law , 91 Geo. L.J. 581, 591–592 (2003)Google Scholar. Geistfeld, himself an economist, is critical of economic analysis's ambition to explain tort law in terms of welfare maximization. That said, Geistfeld's own characterization of defendant versus plaintiff care also seems counterintuitive. Geistfeld argues that “[r]ather than identifying a single ‘cause’ of the accident, the modern rule of comparative fault recognizes that each party caused the accident, resulting in multiple injurers for compensatory purposes.” Id., at 624. The notion that there is no single cause to an accident is not inconsistent with the interdependence thesis I proposed in the main text above. That said, the idea that interdependence turns a victim into an injurer (even for “compensatory purposes” only) strikes me as counterintuitive.

63. Geistfeld, supra note 62, at 592.

64. Id.

65. Very briefly, Coase is certainly right to observe with respect to one of his stock examples that both the trespassing cows and the trespassed-upon corn are necessary ingredients in the interaction leading up to the damage to the corn. That said, it does not follow that causation is by definition radically indeterminate or that causation in negligence law is vacuous. Concerning the former, it cannot be true that the “reciprocal nature” of an interaction between two or more parties entails the impossibility of making causal judgments. Were this true, it would mean that the study of the causal laws of nature—aka the natural sciences—were doomed. To illustrate, oxygen is certainly a necessary condition for the fire that broke out on the riverbank, but would we characterize it as a cause? See Coleman, Jules L., Doing Away with Tort Law , 41 Loy. L.A. L. Rev. 1149, 1163 (2008)Google Scholar. Concerning the latter, whereas Coase raises the (rhetorical) question of whether the activity of corning or that of ranching, taken severally, is the cause of the damage to the corn, negligence law addresses the different causal question of whether the negligent conduct of someone is a but-for cause of the injury (to oneself or to another). In that sense, the concept of causation in negligence law does not seek to connect between doing and suffering, but rather between doing wrong and suffering therefrom. That is, causation in negligence law forges a link between fault and injury, not between action and injury.

To be clear, Coase shows quite convincingly that the question of what outcome is a cost of what activity cannot be fixed by reference to nonnormative considerations such as causation or the active/passive distinction. Instead, the determination of whether the damage to the corn is the cost of the farmer, the rancher, or both, depends on a normative theory of the content of the tort duties they owe each other. Whereas the economic approach takes these duties to demand an investment in precautions whose benefits exceed the costs, a noninstrumental approach would insist on the basic rights of individuals (to liberty and security, for example) as the source of the demands placed on us by these duties. More generally, any account of the content of such duties that denies pride of place to natural considerations (e.g., the distinction between being active and passive) satisfies Coase's point that any plausible conclusion concerning the attribution of responsibility cannot be derived from naturalized considerations. As my present argument (in the main text) seeks to show, the economic theory of the standard of reasonable care—the generic content of those duties—is inconsistent with the asymmetric manner in which it is being measured in negligence law.

66. See also Jules L. Coleman, Risks and Wrongs (1992), at 382–385.

67. The example comes from Martin v. Evans, 711 A.2d 458 (Pa. 1998).

68. By implication, the assessment of B's exercise of care would become objective when B was sued for negligent infliction of risk on C, D, or E. As I explain below (see Section IV) the distinction between the standard of care expected from B the plaintiff (as when he sues A) and B the defendant (when sued by C) is qualitative, normatively speaking. For it reflects the important difference between B's life and limb and his freedom of action, respectively. Of course, the economic approach would reject this analysis (see, e.g., Cooter, Robert & Porat, Ariel, Does Risk to Oneself Increase the Care Owed to Others? Law and Economics in Conflict , 29 J. Legal Stud. 19 (2000))CrossRefGoogle Scholar. This is just another way to restate the point made in the main text above—that on the standard economic analysis, the injurer/victim distinction is conclusory and unhelpful.

69. Speculation is apt since the economic theory of negligence, as I have argued above, has not even fully realized that the assessment of reasonable care is, in fact, asymmetric.

70. Another way to put the point is by reference to the question of whether Roger, the aged pedestrian, stands for a paradigmatic risk taker (as I have been supposing) or a participant in an essential activity (as the objection currently discussed supposes).

71. Geistfeld, supra note 62, at 592.

72. It is not clear precisely what the substantive theory is that underwrites the distinction between essential and nonessential activities and the way in which it maps onto the distinction between pedestrianism and motorism. One possible candidate may be an account that emphsizes preference satisfaction as the moral basis of negligence law. Another possibility concerns the social value of activities measured objectively in the light of the contribution of the particular activity to the overall welfare of society (as determined by the appropriate social welfare function), in which case the criterion of preference satisfaction shifts from actual to rational satisfaction. See, e.g., Louis Kaplow & Steven Shavell, Fairness versus Welfare (2002), at 410–413; Matthew D. Adler & Eric A. Posner, New Foundations of Cost-Benefit Analysis (2006), at 25–61, 129–130 (subjecting a preference-based account of well-being to the test of idealization).

73. Moreover, it is clear from reading the classical theoretical text on the objective standard of due care, Holmes's The Common Law, that the category of tortfeasor stands in for a person who creates certain risks to others, rather than engages in a nonessential activity. Holmes uses the person who is “born hasty and awkward, is always having accidents and hurting himself or his neighbors” as his stock example in the course of defending the imposition of an objectively fixed standard of due care. Oliver Wendell Holmes, Jr., The Common Law (1881), at 108. The conclusion he reaches implies (1) that the hasty and awkward person might create risks to others, and (2) that he or she may be engaging in essential as well as nonessential activities. Id. (Holmes argues that “his slips are no less troublesome to his neighbors than if they sprang from guilty neglect.” This person, therefore, must “come up to [his neighbors’] standard, and the courts which they establish decline to take his personal equation into account.”).

74. 142 N.W.2d 173 (Wis. 1966).

75. See id., at 175 (The defendant “suffered from an eye disease known as retinitus pigmentosa (known as ‘tunnel vision’), which reduced his peripheral vision to 15 degrees in each eye. This means . . . that . . . [o]utside of this 15 degree central vision he is blind. He doesn't see anything unless he points his head in this direction and brings those 15 degrees around to where he wants to look. He can't see where he is stepping and points like a telescope and points at what he is going to see. He wont know if he is going to fall into a hole or what.”) (internal quotation marks omitted).

76. There was no bathroom inside his room. Id.

77. Id. The plaintiff sustained “serious” injuries. Id.

78. Id., at 178.

79. Id.

80. Id.

81. Id. In support of this exacting interpretation of the maxim, the court cites an earlier case dealing with a physically disabled defendant, Lisowski v. Milwaukee Automobile Mutual Ins. Co., 117 N.W.2d 666 (Wis. 1963). According to the Lisowski, “a handicapped person must do more to exercise ordinary care than would be required if he were not handicapped. . . .” Id., at 670.

82. Pennington v. S. Pac. Co., 304 P.2d 22, 29–30 (Cal. Ct. App. 1956).

83. Stephens v. Dulaney, 428 P.2d 27, 31 (N.M. 1967) overruled on other grounds by Williamson v. Smith, 491 P.2d 1147 (N.M. 1971).

84. Stephens, 428 P.2d at 33.

85. Recall that on my analysis of the case law, the crucial question is whether the plaintiff is physically disabled, rather than whether the activity in which he participates is essential (or nonessential).

86. See, e.g., Mutterperl v. Lake Spofford Hotel, Inc., 216 A.2d 35 (N.H. 1966); Jackson v. Frederick's Motor Inn, 418 A.2d 168 (Me. 1980). See also Smith v. Wal-Mart Stores, Inc., 167 F.3d 286 (6th Cir. 1999).

87. Cf. Landes & Posner, supra note 4, at 126–127.

88. Id.

89. I say “may comport with” because there exists the question of what to make of the conduct of the risk taker. By generating risk of harm to one's own bodily integrity, it may be argued that comparative negligence must also be assessed objectively to reflect the interest at stake, in which case the asymmetric measurement of due care should be abolished. That said, it could be argued that this outcome is too paternalistic, because it coerces one to prefer her own bodily integrity to her other autonomy-enhancing activities.

90. Moreover, strict liability may become an arguably more attractive default rule of liability for accidental harms than its negligence counterpart.

91. See Adler & Posner, supra note 72, at 178 (observing that “[a]ctions that result in premature death reduce overall welfare, ceteris paribus; regulatory interventions that prevent those actions increase overall welfare, ceteris paribus”); Harel, Alon & Porat, Ariel, Commensurability and Agency: Two Yet-to-Be-Met Challenges for Law and Economics , 96 Cornell L. Rev. 749, 766 (2011)Google Scholar.

92. Furthermore, it seems that the ultimate challenge is not merely to come up with a coherent economic rationale for due care asymmetry. The rationale ought to be normatively appealing, especially when the competing rationale is grounded in an idea of substantive equality (an idea to be developed in Section IV below).

93. See, e.g., Weinrib, supra note 3, ch. 4; Ernest J. Weinrib, Corrective Justice (2012), at 21–29, 270–280; Coleman, supra note 66, at 197–439; Arthur Ripstein, Equality, Responsibility, and the Law (1999), at 24–132; Ripstein, supra note 26.

94. See, e.g., Martin Stone, The Significance of Doing and Suffering, in Philosophy and the Law of Torts, in Philosophy and the Law of Torts (Gerald J. Postema ed., 2001), at 131, 156–157 (noting that tort law “treats the parties as equals when it assesses their transaction in terms that have a correlative significance for each of them, rather than in terms . . . which pick out their several qualities and are therefore suitable for relating them . . . in a distributive scheme”); Weinrib, supra note 3, at 82 (arguing that “the equality of the parties corresponds to the irrelevance for the normative dimension in agency of the particular features—desires, endowments, circumstances, and so on—that might distinguish one agent from another”); Coleman & Ripstein, supra note 5, at 109, 112; Jules L. Coleman, Second Thoughts and Other First Impressions, in Analyzing Law: New Essays in Legal Theory (Brian Bix ed., 1998), at 257, 304 (noting that “the fault principle is best conceived as an elaboration of an idea of equality between the [injurer and the victim]”).

95. Weinrib, supra note 3, at 74; Coleman, supra note 66, at 352; Coleman, Jules L., Mistakes, Misunderstanding, and Misalignments , 121 Yale L.J. Online 541, 553–554 (2012)Google Scholar, http://yalelawjournal.org/2012/03/20/coleman.html.

96. For discussions of this point, see Klimchuk, Dennis, On the Autonomy of Corrective Justice , 23 Oxford J. Legal Stud. 49, 63–64 (2003)CrossRefGoogle Scholar; Ripstein, Arthur, The Division of Responsibility and the Law of Tort , 72 Fordham L. Rev. 1811, 1843 (2004)Google Scholar.

97. The standard of reasonable care picks out the content of the duty to exercise due care. In contemporary parlance, this is the breach element of the prima facie case of negligence. The discussion in the main text does not consider the different element of duty. Whereas the duty element concerns the very existence of the duty to take care, the breach element spells out the level of care that is required in order to meet the duty.

98. See, e.g., Weinrib, supra note 3, at 148, 177–178; Coleman & Ripstein, supra note 5, at 109, 112; Dorfman, Avihay, Can Tort Law Be Moral? , 23 Ratio Juris 205, 216–217 (2010)CrossRefGoogle Scholar; see also Weinrib, Ernest, Causation and Wrongdoing , 63 Chi.-Kent L. Rev. 407, 428 (1987)Google Scholar.

99. For a Kantian elaboration of the universal principle of freedom in the domain of law, see Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009), especially at 171 (arguing that “objective standards of conduct are required by a system of equal freedom, in which no person's entitlements are dependent on the choices of others”).

100. See id., at 171 (noting that “[e]qual private freedom presupposes objective standards of interaction”); Weinrib, supra note 3, at 148, 177–178; Jules Coleman, Tort Law and Tort Theory: Preliminary Reflections on Method, in Philosophy and the Law of Torts (Gerald J. Postema ed., 2001), at 183, 205 (asserting that “[f]airness requires that no person be permitted to set the terms of cooperative interaction between individuals unilaterally”); Coleman & Ripstein, supra note 5, at 109, 112; Alan Brudner with Jennifer M. Nadler, The Unity of the Common Law: Studies in Hegelian jurisprudence (2d ed., 2013), at 296 (criticizing, on formalistic grounds of “equal security,” the subjectivist bent of the Hand formula).

101. Weinrib, supra note 3, at 148; Coleman, supra note 100, at 206; Ripstein, supra note 99, at 59. But see Stephen R. Perry, Responsibility for Outcomes, Risk, and the Law of Torts, in Philosophy and the Law of Torts (Gerald J. Postema ed., 2001), at 72, 113 (defending the resort to the Hand formula in noneconomic terms in situations where the risks in question are within an acceptable range and are jointly, rather than unilaterally, created).

102. See also Dorfman, supra note 18, at 376–377.

103. This approach is most famously defended in Weinrib, supra note 3, at 148–152. See also Ripstein, supra note 26, at ch. 3. Other leading corrective justice theorists take a somewhat less rigorous approach, acknowledging that the standard of reasonable care features a balance between interests in liberty and in security and that this balance turns on substantive considerations about the value of these interests in general and in particular instances.

104. To be sure, not all torts accounts that go by the name of corrective justice subscribe to this notion of formal equality.

105. Compare Weinrib, supra note 3, at 169 n.53(1); Ripstein, Arthur, Civil Recourse and Separation of Wrongs and Remedies , 39 Fla. St. U. L. Rev. 163, 181 (2011)Google Scholar with Ripstein, supra note 93, 111–113.

106. Weinrib, supra note 3, at 183 n.22. Weinrib notes that denying the physically disabled tortfeasor a subjective assessment of her conduct and insisting, in its stead, on an objective one is disrespectful of this person's agency, rendering her “interaction with others impossible.” Id. A somewhat similar, though not necessarily identical, approach appears in Ripstein, Arthur, Justice and Responsibility , 17 Can. J.L. & Juris. 361, 372 (2004)Google Scholar (defending a “thin” conception of agency in which persons must at the very least possess the capacity for being “in general self-determining beings,” and thus allowing for “narrow exceptions for those who, because of . . . disability, cannot be guided by particular norms of conduct”). But see Ripstein, supra note 105, at 181.

107. See Immanuel Kant, The Metaphysics of Morals (Mary Gregor trans., 1996) (1797), at 62 [6:278] (arguing that to acquire a part of another's person amounts to acquiring “the whole person, since a person is an absolute unity”).

108. Weinrib, supra note 3, at 127.

109. See, e.g., Ripstein, supra note 106, at 372; Mayo Moran, Rethinking the Reasonable Person (2003), at 52–54.

110. Dorfman, supra note 18, at 389–400.

111. To be clear, not all physical harms are sufficiently serious to warrant asymmetric assessment of care. The argument going forward takes the paradigmatic case to be that of serious personal injury (including, most extremely, death). Even given that it is possible to articulate a test for telling serious from “light” injuries, there are good second-order reasons why negligence law treats all physical harms (with the exception of trivial injuries) as falling within one category of setbacks to the person. Accordingly, the proposed argument, although it most acutely addresses asymmetric care in the context of risk to serious personal injuries, can be extended to capture all nontrivial personal injuries.

112. Cf. Ronald Dworkin, Taking Rights Seriously (1977), at 227 (distinguishing between equal treatment, which is a variation on formal equality, and treating persons as equal, which is a basic pillar of substantive equality). To be sure, my account does not share Dworkin's controversial view that distributional equality is equality's only or main concern (or that realizing substantive equality is the state's, rather than the individual's, distinctive responsibility). The notion of substantive equality on which I draw in these pages—a nondistributive substantive conception of relational equality—is further developed in Avihay Dorfman, Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality (unpublished manuscript). For a tort theorist who casts his theoretical account of tort law in terms of Dwrokin's distributive justice framework, see Mark A. Geistfeld, Compensation as a Tort Norm, in The Philosophical Foundations of the Law of Torts (John Oberdick ed., 2014), at 65, 68–70, 84.

113. See infra Section V.B for more on the scope of the proposed egalitarian argument.

114. In requiring the defendant to adjust her level of care in the light of the plaintiff's skills, I do not argue that all possible capacities on the part of the plaintiff deserve such adjustments. Taking seriously the actual person of the victim shares some similarities with the thin-skull doctrine's requirement that the injurer take the injured as she finds him, especially in the context of wrongful infliction of physical and emotional harm. It is true that the thin-skull doctrine, but not the reasonable care doctrine, applies to unforeseeable sensitivities. However, for reasons I discuss in the main text accompanying notes 123–124, infra, the difference in question is far less significant than believed.

115. For otherwise diverse normative claims that negligence law (and the reasonable care standard, in particular) upholds the lexical priority of bodily integrity, see, e.g., Wright, Richard W., Justice and Reasonable Care in Negligence Law , 47 Am. J. Juris. 143, 170–194 (2003)Google Scholar; Keating, supra note 3, at 344; Geistfeld, supra note 21, at 122–128.

116. See Amartya Sen, Inequality Reexamined (1995), at 44–45; see also Joseph Raz, Value, Respect, and Attachment (2001), at 77; Kant, supra note 107, at 62.

117. 338 P.2d 743 (Wash. 1959).

118. Id., at 744.

119. Id., at 746.

120. See also Balcom v. City of Independence, 160 N.W. 305, 308 (Iowa 1916) (“[W]hosoever did that which might injure [the blind person] should use more precautions than would be necessary where the one to be affected was not blind.”).

121. See Weinstein v. Wheeler, 271 P. 733, 735 (Or. 1928) (“Those who drive automobiles on the streets of a city, and who observe, or in the exercise of reasonable diligence ought to know, that a pedestrian is blind, must use care commensurate with the danger involved. It will not do to drive on under such circumstances and assume that one thus deprived of sight will jump the right way. The automobile should be stopped.”).

122. See, e.g., Adams v. Bullock, 125 N.E. 93 (N.Y. 1919) (the duty of reasonable care does not demand utmost care).

123. Statistical foreseeability reflects the frequency and distribution of a given disability across society. Tortfeasors are not expected to know the exact numbers, but they are certainly aware of the existence of physically disabled persons in their society and of the possibility that some of them might happen to be within the zone of foreseeable danger relevant to these tortfeasors’ risky conduct.

124. See Haley v. London Electricity Board [1965] AC 778, 791 (HL) (“We are all accustomed to meeting blind people walking alone with their white sticks on city pavements. . . . I find it quite impossible to say that it is not reasonably foreseeable that a blind person may pass along a particular pavement on a particular day.”) (per Lord Reid). See also id., at 806 (observing that “[in] view of the large number of blind persons who fall into the category of abnormal and are users of the road it cannot be said that the risk of causing them injury is so small as to be minimal and therefore to be excluded from the realm of foreseeability.”) (per Lord Hodson).

125. Compare Dye v. Burdick, 553 S.W.2d 833 (Ark. 1977) (denying strict liability) with Forrest v. Imperial Distrib. Serv., Inc., 712 P.2d 488 (Colo. Ct. App. 1985) (upholding strict liability). Cf. Shugerman, Jed Hendelsman, The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age , 110 Yale L.J. 333 (2000)CrossRefGoogle Scholar.

126. See Restatement (Third) of Torts: Physical & Emotional Harm (2010), §20(b)(1) (defining “abnormally dangerous activity” in terms of an activity that “creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors”).

127. Id., cmt. h (observing that “whether reasonable care is effective in eliminating risks has been the most important factor influencing courts as they have decided which activities are abnormally dangerous”). See, e.g., Walker Drug Co. v. La Sal Oil Co., 902 P.2d 1229, 1233 (Utah 1995).

128. See, e.g., Klein v. Pyrodyne Corp., 810 P.2d 917 (Wash. 1991) (imposing strict liability on a pyrotechnic company in charge of a public fireworks display).

129. Indeed, contemporary public debates concerning gun-control regulations in the United States exemplify this point.

130. For instance, pyrotechnic companies may be subject to safety regulations over and above the torts-based regime of strict liability (e.g., rules concerning the transportation of firearms). For more information see the website of the U.S. Department of Transportation: Pipeline and Hazardous Materials Safety Administration, http://www.phmsa.dot.gov/.

131. See, e.g., Harlow, Kristin, Note, Applying the Reasonable Person Standard to Psychosis: How Tort Law Unfairly Burdens Adults with Mental Illness , 68 Ohio St. L.J. 1733, 1735–1736, 1741–1742, (2007)Google Scholar; Kelley, supra note 26, at 204; Mark A. Geistfeld, Tort Law: Essentials (2008), at 183, 191; Benjamin C. Zipursky, The Cathedral Through the Looking Glass: A Commentary on Dagan and Dorfman's Just Relationships, Colum. L. Rev. Sidebar (forthcoming 2017).

132. See Restatement (Third) of Torts: Liability for Physical Harm (2010), §11 cmt. e.

133. On the received convention, whereas most courts prefer a uniform, objective approach to mental disability, a notable exception is Breunig v. American Family Ins. Co., 173 N.W.2d 619 (Wis. 1970) (a sudden, unexpected mental disability absolves an individual of tort liability).

134. See, e.g., Creasy v. Rusk, 730 N.E.2d 659, 667 (Ind. 2000) (finding that an institutionalized, mentally disabled defendant “owed no duty of care” to plaintiff-caregiver); DeMartini v. Alexander Sanitarium, Inc., 13 Cal. Rptr. 564 (Ct. App. 1961) (asserting that “the issue of contributory negligence of a mentally disturbed person is a question of fact”).

135. Landes & Posner, supra note 4, at 127–128.

136. See Moran, supra note 109, at 52–54.

137. See Dobbs, supra note 36, at 284 (stating that “[o]nly limited and somewhat peculiar authority qualifies” the objective standard of care to be applied to mentally disadvantaged tortfeasors).

138. Typically, defenders of the conventional view merely assert the view, providing very little evidence in its support. See, e.g., Dan B. Dobbs et al., Dobbs’ Law of Torts (2d ed., last updated 2015), §130 (asserting that the mentally disabled plaintiff faces the same unaccommodating standard of objective care and citing two cases, one of which seems to rely on the fact that there was no evidence that the plaintiff's disability played any role in this case), https://1.next.westlaw.com/Document/I4020bbe5db4c11e18cd29897efb1f23a/View/FullText.html?originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default).

139. As the New York State Court of Claims has observed:

As a matter of law, insanity has never been a defense to civil liability in tort. Where the incompetent is the plaintiff, however, numerous trial court decisions have refused to find contributory negligence where plaintiff was suffering either from severe mental retardation . . . or from psychosis . . .

Young v. State Dept. of Social Services, 92 Misc. 2d 795, 796 (N.Y. Ct. Cl. 1978) (multiple references to supporting cases omitted).

140. Snider v. Callahan, 250 F. Supp. 1022, 1023 (W.D. Mo. 1966) (Missouri Law).

141. See, e.g., id., at 1023; Noel v. McCaig, 258 P.2d 234, 240–241 (Kan. 1953); Feldman v. Howard, 214 N.E.2d 235 (Ohio App. 1966), rev'd on other grounds, Feldman v. Howard, 226 N.E.2d 564 (1967).

142. Crais III, W. C., Comment Note, Contributory Negligence of Mentally Incompetent or Mentally or Emotionally Disturbed Person , 91 A.L.R.2d 392 (1963)Google Scholar, at §2[a]; see also id., at §4[a] for references to case law.

143. To fix ideas, extra investment in care would (not should) have been needed, say, if the defendant knows or can know that the plaintiff, who walks on a crowded sidewalk next to the defendant, carries a glass-made, and hence extremely fragile, suitcase. Or to draw on the famous case of Wagon Mound No. 1 (Overseas Tankship (U.K.) v. Morts Dock & Eng'g Co., [1961] 1 All ER 404 (Privy Council)): imagine that the defendant's crew knows or can know that the plaintiff's dock is made of thin plywood.

144. I defend this claim, including a more ambitious one concerning the importance of accommodating certain basic choices in addition to physical sensibilities (such as religious, ethical, and familial commitments), elsewhere. See Avihay Dorfman, Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality (unpublished manuscript); Hanoch Dagan & Avihay Dorfman, Justice in Private (unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2463537; Dagan, Hanoch & Dorfman, Avihay, Just Relationships , 116 Colum. L. Rev. 1395 (2016)Google Scholar.

145. Certainly, some negligence law cases may be apt. A particularly relevant category of cases involves pure economic loss in connection with negligent misrepresentation and defective products. That said, courts typically attend to the question of plaintiff caring skills through the doctrinal lens of contract law (unconscionability, for example) and consumer protection law. Against this backdrop, I shall explore instead the nuisance doctrine of unreasonable interference (on which more below).

146. 132 Eng. Rep. 490 (Ct. Com. Pl. 1837).

147. Id., at 492–494.

148. Bie v. Ingersoll, 135 N.W.2d 250, 252 (Wis. 1965). See also Goeke v. National Farms, Inc., 512 N.W.2d 626, 632 (Neb. 1994); Rogers v. Elliot, 15 N.E. 768 (Mass. 1888).