Negligence: Taking Others as They Really are

51 Pages Posted: 21 Aug 2013 Last revised: 9 Sep 2014

See all articles by Avihay Dorfman

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Date Written: August 13, 2013

Abstract

It is quite common to think that any successful account of the standard of reasonable care in negligence law must revolve around the question of what reasonable care is. It is further conventional to suppose that an answer to that question will provide us with the normative materials to address the question of how to assess conformity with the standard's prescriptions (whatever they are). Indeed, tort theorists proceed by presupposing that the manner in which reasonableness is measured is derivative of, and so fully compatible with, the standard’s content and its corresponding value (be that efficiency in the case of lawyer economists or formal equality in the case of corrective justice theorists).

However, I shall seek to show that this presupposition is wrong: The manner in which reasonable care is assessed is inconsistent with, and therefore frustrates, either the economic or the corrective justice account of this standard, or, for that matter, any tort theory that fails to take seriously the independent work that the how-to-assess question purports to do. Whereas both economic and corrective justice approaches 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 for the most part assessed by reference to a subjective measurement of reasonable care. I shall 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 between them. This way of attending to the interests of others resonates well with a powerful notion of respect for persons — that to attend to others respectfully is to engage them on their own terms (including, most importantly, their distinctive judgments and sensibilities). And to the extent that the standard of care captures the moral center of negligence law, the asymmetry in care assessment suggests that the notion of true respect, rather than social welfare or formal equality, is the first virtue of the legal institution of negligence.

Suggested Citation

Dorfman, Avihay, Negligence: Taking Others as They Really are (August 13, 2013). Available at SSRN: https://ssrn.com/abstract=2312815 or http://dx.doi.org/10.2139/ssrn.2312815

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
Israel

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