61 Pages Posted: 30 Aug 2021 Last revised: 1 Mar 2022
Date Written: August 2, 2021
Tort doctrine states that breach is all about conduct. Unlike in the criminal law, where jurors must engage in an amateur form of mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at how the defendant behaved. But this is false. Foreseeability is at the heart of negligence—appearing as the primary tests for duty, breach, and proximate cause. And yet, we cannot ask whether a defendant should have foreseen a risk without interrogating what he subjectively knew, remembered, perceived, or realized at the time. In fact, the focus on actions in negligence is misleading, because unreasonable actions are not necessary for negligence liability, while a negligent mental state is. Unfortunately, when we assume that foreseeability can be assessed objectively through conduct, this encourages significant hindsight bias. Jurors are left rudderless—free to replace what *could* have been foreseen with what they think *should* have been in retrospect. Further, while the outputs of mental states can be labeled reasonable or unreasonable, the underlying mental states themselves cannot be. There is no such thing as “objectively reasonable memory” or “objectively reasonable perception.” If there were, it would need to be keyed to a population standard of poor performance, as typical adults are lousy at foresight. If we are committed to negligence being based on breach and not being simply a form of wealth redistribution or compensation, we must pay more attention to whether a particular defendant is capable of foresight. This article argues that foresight has been deemed a “vexing morass” and a “malleable standard” precisely because we fail to treat it as an epistemic construct—similar to intent, knowledge, or recklessness. Given the foregoing, I propose a revision to the elements of negligence to recognize foresight as mental state. While relying heavily on the current prima facie elements, I reshuffle them to focus the jury’s attention on the descriptive inquiries and the judge’s attention on the normative ones. In addition to reducing hindsight bias by emphasizing the defendant’s capacity for foresight, my proposal also has the added benefit of better distinguishing the tests for duty, breach and proximate cause, which presently overlap and blur the roles of judge and jury.
Keywords: negligence, foreseeability, episodic foresight, psychology, hindsight bias
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