The Many Faces of Negligence

Theoretical Inquiries in Law, Vol. 4, p. 105, 2003

40 Pages Posted: 21 Feb 2003 Last revised: 11 Jan 2012

Ariel Porat

Tel Aviv University; University of Chicago - Law School

Date Written: January 11, 2012

Abstract

Negligence law is built around the paradigmatic case of a person who unreasonably preferred his own interests to those of others and, as a result, caused damage to another person. However, this case is not representative of all instances of negligence. In some cases, the negligent injurer failed in balancing between the interests of the victim alone; in other cases, he failed in balancing between the victim's interests and those of a third party; sometimes the injurer failed in balancing the victim's interests and the interests of the public or of society as a whole; and in yet other instances, he failed in balancing between his own interests. This article argues that the law should not treat in the same manner the different types of instances of failure in balancing between interests. Both justice and deterrence considerations mandate different treatment for the different types of instances, in accordance with the type of interests that the negligent injurer failed to balance. The article focuses on the typical types of balances of interests that the potential injurer is required to conduct before taking action, with the aim of determining the degree to which it is crucial to impose tort liability in each type of case. The article also examines whether prevailing negligence law is compatible with the thesis developed in the article and proposes tools for achieving such compatibility.

Keywords: Negligence, proximate cause, duty of care, standard of care, Hand formula, deterrence, economic efficiency, corrective justice, retributive justice, balancing interests, public authorities, self risk, interests, malpractice, doctors' liability, road accidents, duty to rescue, professional liability, Attorneys' liability

JEL Classification: K00, K10, K13, K32

Suggested Citation

Porat, Ariel, The Many Faces of Negligence (January 11, 2012). Theoretical Inquiries in Law, Vol. 4, p. 105, 2003. Available at SSRN: https://ssrn.com/abstract=376205 or http://dx.doi.org/10.2139/ssrn.376205

Ariel Porat (Contact Author)

Tel Aviv University ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
972-3-6408283 (Phone)
972-3-6407260 (Fax)

HOME PAGE: http://www.law.tau.ac.il/Heb/?CategoryID=357&ArticleID=388

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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