Negligence in the Air

Abstract

This article explores the deeply pervasive view within tort law that negligence is a relational concept--that to assess whether a defendant should be held to be negligent in causing the plaintiff's harm (and, by some accounts, to assess whether the defendant should be thought the proximate cause of the plaintiff's harm), one must ask whether the harm that happened was within the class of harms that made it unreasonable of the defendant to act as he did. The paper begins by working through the historical development of a harm-within-the-risk analysis of negligence and demonstrates how that analysis was thought by some to eliminate altogether the need for a separate inquiry into proximate causation. It then advances an extended argument that a harm-within-the-risk analysis (conceived of either as an analysis of negligence or an analysis of proximate causation) both invites damning conceptual difficulties and is normatively undesirable. Its third part examines whether certain traditional doctrines such as transferred intent and per se negligence (predicated on statutory violations) can be preserved if a relational view of negligence is rejected, and argues that, in fact, such doctrines can be preserved intact. The paper concludes by demonstrating the descriptive inaccuracy of a harm-within-the-risk theory of proximate causation. The upshot of the argument is that Justice Cardozo was wrong in making his famous claim that there is no such thing as "negligence in the air,"--that "risk imports relation."