Tort negligence, like Gaul, is divided into three parts. The first territory is conscious negligence: the actor, aware of the risks, nevertheless chooses to take them, and is unreasonable in doing so. The second is inadvertent negligence: the actor is unaware of the foreseeable and unjustifiable risks, and that ignorance is unreasonable. And the third is a failure to safely execute a task, a failure that is unreasonable. A driver can be negligent for harming another:
- by choosing to run a red light despite recognizing the risk to a pedestrian;
- by looking at her cellphone and not seeing the pedestrian; or
- by making the effort to brake in plenty of time but clumsily failing to press the brake firmly enough.
Most tort scholars who investigate negligence doctrine explore only the first domain, but a few have explored the second and third.1
In a forthcoming article, A Two-System Theory of Negligence, Professor Christopher Brett Jaeger joins this doctrinal expedition and offers a provocative and insightful new account of what constitutes negligence in the second and third realms. Jaeger carefully applies the two-system theory of cognition in psychology (made famous by Daniel Kahneman) to this question. As he explains:
Two-system theory divides the processes happening in the human mind into “system-one” processes, which are fast, effortless, and do not require conscious control (things like seeing, hearing, automatic reactions, and basic sensorimotor skills), and “system-two” processes, which are slow, effortful, and depend on conscious control (like reasoning and deliberative decision making). (P. 4.)
Jaeger notes that most analyses of negligence focus on system-two processes—on how actors consciously evaluate whether to take a precaution against the risks that their conduct poses. He instead focuses on how courts apply standards of reasonable care to system-one unconscious cognitive processes such as failures to see a hazard, slow reaction times, or moments of clumsiness. The distinction is sometimes subtle. Failure to look or listen for a hazard while driving is system-two. Failure to see or hear (despite looking and listening) is system-one.
Examining the relevant case law concerning system-one failures, Jaeger discovers that courts purport to apply the same reasonable person test here that they apply in system-two cases, but in actual practice, they are more receptive to system-one claims involving perceptual failures (such as failing to see a hazard in time while driving) than those involving substandard reaction time (such as a subway train operator not braking quickly enough) or clumsy conduct due to sensorimotor failures (such as slipping and falling, in cases other than moving too hastily; the latter would be system-two failures). Yet, he observes, psychological research reveals that perceptual failures are more common than most people realize and are not in that respect different from the other kinds of system-one failures.
Jaeger then turns to the question of how courts should analyze reasonable care in system-one cases. He argues that judges and juries should apply a descriptive criterion, what an ordinary person would have done, to all unconscious cognitive process cases, but a different normative criterion, what a reasonable person should have done, to the conscious decision cases. Lumping all negligence cases together is, he claims, a mistake. The two different forms of negligence should be governed by these different doctrinal rules.
The article is very well-written, analytically rigorous, and thoroughly researched. Relying on his expertise as a PhD in Psychology, Jaeger has clearly identified an important problem that deserves much more serious study, and he has offered a creative and very promising solution. His formulation of the distinction between system-one and system-two cases is an example of the precision and power of his argument: if the precaution “is something the defendant could have done with conscious effort,” the plaintiff is making a system-two claim, otherwise it is a system-one claim. (P. 7.) As he carefully explains, this account is subtly different from the more standard distinction between unawareness and awareness of a risk:
[T]he distinction between system-one and system-two negligence claims does not turn on what the defendant was actually thinking, what risks they were aware of, or what actions they deliberated. Instead, the distinction hinges on whether the defendant could have taken the particular accident-preventing action urged by the plaintiff with conscious effort. (Pp. 29-30.)
Thus, Jaeger divides up the terrain somewhat differently from the more conventional division I described in the first paragraph of this jot.2
Jaeger helpfully reviews relevant psychological studies about system-one failures. He also responds well to potential counterarguments, including the concern that tort liability for system-one failures is really an instance of strict liability, not negligence.
Some issues in the article could be developed further. First, it would help to clarify how the proposed “ordinary person would” standard that he claims should govern system-one cases can be reconciled with the long-standing negligence principle that (with rare exceptions) custom does not define the standard of care. Second, some instances of type-one negligence such as clumsiness and short reaction time are a product of physical disabilities, at least in part. It would therefore be useful to examine more carefully how the usual flexible “reasonable person with the actor’s physical disability” test would and should apply here. Third, it would be instructive to examine how system-one failures of memory are treated in the case law; Jaeger touches on the topic only in connection with academic studies.
But it is hardly a major criticism that some issues in this article would benefit from further research or analysis. Professor Jaeger has redrawn the boundaries of different types of negligence cases in a novel and highly illuminating way. That is quite an accomplishment.
- See, e.g., Kenneth W. Simons, The Hegemony of the Reasonable Person in Anglo-American Tort Law, in 1 Oxford Studies in Private Law Theory 45, 47, 64 (Paul B. Miller & John Oberdiek eds., 2020); Benjamin C. Zipursky, Reasonableness in and out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2156-2157 (2015).
- Jaeger’s account is also different from the accounts of Mark Grady (distinguishing between durable and nondurable precautions) and Ben Zipursky (distinguishing between precaution negligence and performance negligence), the only other significant scholarly treatments of the topic.
