Harm Screening Under Negligence Law

Emerging Issues in Tort Law (J. Neyers, E. Chamberlain & S.G.A. Pitel eds., Hart Publishing) 251 (2007).

Hebrew University of Jerusalem Legal Research Paper

36 Pages Posted: 15 May 2015

See all articles by Israel Gilead

Israel Gilead

Hebrew University of Jerusalem - Faculty of Law

Date Written: 2007

Abstract

The law of negligence has always faced two basic challenges. The first is how to determine whether the conduct of an actor was undesirable, or careless, at the time it occurred, namely whether the actor was at fault. Did the risks that were generated by the conduct render it faulty ex ante? The second challenge is to determine ex post the scope of liability for any given faulty conduct. Specifically, for which harms caused in fact by faulty conduct is the actor liable and for which is he or she not? This is the screening challenge.

Screening, which is the subject of this chapter, raises two central and interrelated sets of questions. First, once it is established that the actor’s conduct was faulty, and that it was the cause-in-fact of the plaintiff’s harm, what are the justifications, and what should the criteria be, for excluding certain harms from the scope of liability? The second set of questions has to do not with substance but rather with form. Which ‘legal devices’ are best designed or best suited to perform the screening task given its justifications and criteria?

Keywords: negligence, conduct, fault, risk, ex ante, ex post, liability, harm, screening

Suggested Citation

Gilead, Israel, Harm Screening Under Negligence Law (2007). Emerging Issues in Tort Law (J. Neyers, E. Chamberlain & S.G.A. Pitel eds., Hart Publishing) 251 (2007)., Hebrew University of Jerusalem Legal Research Paper, Available at SSRN: https://ssrn.com/abstract=2606559

Israel Gilead (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
38
Abstract Views
337
PlumX Metrics