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Avi Dorfman, Negligence and Accommodation: On Taking Other People as They Really Are, (2014), available at SSRN.

Avi Dorfman, a private law scholar at Tel Aviv University, has posted a deep and provocative paper Negligence and Accommodation: On Taking Other People as They Really AreNegligence and Accommodation is one of those rare papers that manage to say something new about familiar terrain. Here, the terrain is negligence law’s treatment of primary (other-regarding) negligence and contributory (self-regarding) negligence. Dorfman makes the case that the matter is of prime importance for our understanding of the morality of negligence law. The essential idea is simple enough. We are accustomed to thinking of the standard of reasonable care as objective. Indeed negligence law is famously objective. It holds people to the standard of conduct that an idealized normal person would achieve. Dorfman argues, however, that negligence law takes people as they are—subjectivizes by taking their individual limitations into account—more than we think, but it does so asymmetrically. Negligence law takes the traits of victims into account when they fail to exercise sufficient care for their own protection, but it is as firmly objective as the received wisdom takes it to be when it addresses the negligence of those who endanger others.

Challenging the Received Wisdom

Quite rightly, Negligence and Accommodation, takes negligence law’s treatment of physical disability as the canonical instance of the law addressing people whose capacities and competencies are less than those of the standardized “reasonable person.” The paper then marshals an impressive amount of evidence in support of two theses. The first is that the law makes allowance for physical disability and adopts a “watered-down standard of care [for] cases of contributory or comparative negligence.” (P. 12, fn. omitted.)1 The second is that not even “one case concerning the conduct of the tort-feasor has made allowance for her physical disability. Thus, tort-feasors are required to exercise the care a non-disabled tort-feasor would have been expected to exercise.” (P. 13, fns. omitted.) Neither of these theses is either wholly new, or utterly surprising. As Dorfman notes, Fleming James stressed that the subjectivization of the standard of care found its most intense manifestation in the case of physical disabilities. Still, no one has developed as thoroughly or as persuasively the thesis that asymmetric treatment of self-regarding and other-regarding obligations of care is a deeply entrenched feature of negligence law.2 In zeroing in on the asymmetric treatment of primary and contributory negligence, moreover, Dorfman is highlighting a theoretically important feature of negligence law. The two dominant tort theories of our time—economic analysis and corrective justice—both impose frameworks which suggest that primary and contributory negligence are on a par and both tend to push the actual treatment of contributory negligence by negligence law to the peripheries of their theories. They do so because the law’s asymmetric approach embarrasses both views.

On the welfarist view of law and economics, primary and contributory negligence should be treated identically in principle because coordinate precautions are essential to optimal accident avoidance and so to wealth-maximization. It is a wholly empirical question whether the cheapest-cost-avoider for any accident (or class of accidents) is the victim or the injurer. Normatively, potential injurers and prospective victims have the same obligation. They must both take efficient precaution. Epistemically, the case for using objective standards is the same in both cases. The information necessary for both actors and courts to apply a subjective standard is generally too expensive to be worth acquiring. Yet the law is more solicitous of identical individual infirmities when contributory negligence is at issue than it is when primary negligence is at issue. Negligence law’s practice confounds economic theory.

On the corrective justice view, subjective standards are objectionable because attention to the idiosyncrasies of one party’s capacities allows that party to fix the terms of interaction between equal persons unilaterally. Negligence liability is about two related principles: one is the formal or transactional equality of the parties; the other is equal freedom. In the eyes of the law, all potential injurers and prospective victims are equals. Honoring that equality requires treating injurers and victims in formally equal ways and that, in turn, requires an objective standard of care. Subjective standards of care make individual idiosyncrasies dispositive in a way which undermines equal liberty. If I have an especially egotistical sense of how important it is that I get to the beach early on some summer Saturday, a subjective standard will take my unreasonably intense desire as a reason which authorizes me to impose an especially great amount of risk on others en route to the beach. Perversely, my inflated sense of the importance of my own projects makes the benefit to me of getting to the beach quickly greater than it is for a more reasonable person, who sees their own projects as no more important than anyone else’s.

On a subjective view, the especially great benefit that I derive from the successful realization of an end authorizes me to impose more risk than a normal person. I may, for example, be authorized to drive ten miles an hour faster than everyone else. Or, if I’m unusually inept, like Menlove,3 I will owe other people less care—because the cost of care to me will be higher. Conversely, they will owe me more care—because my inability to protect myself to a normal extent will increase the risks that their conduct imposes on me as opposed to a normally competent person. On the one hand, I will get to stack my hay incompetently. On the other hand, others will have to take special precautions— both to protect me because I’m less able to protect myself and to guard themselves against my incompetence. By contrast, an objective standard requires Menlove to “get with the program”—to get up to speed with the practice of a normally competent farmer—because an objective standard treats everyone as if they are normally competent. Because a subjective standard requires others to accommodate Menlove’s lesser competence a subjective standard bends others’ liberty to the requirements of Menlove’s particular shortcomings. Menolve unilaterally determines the terms of his interactions with others. That cannot be squared with tort law’s commitment to equal liberty and formal equality.

Vaughan v. Menlove is canonical. If the case didn’t exist, we’d have to invent it. The basic doctrinal point of Dorfman’s paper is that we tend to overgeneralize the lesson of Vaughan. Negligence law’s treatment of pure contributory negligence—of careless conduct which endangers only the plaintiff—has long had a subjective cast. To be sure, you might think there is a sound justification for this, one overlooked by theories as general as the economic and corrective justice theories. That justification is that pure contributory negligence is a self-regarding error, a failure to exercise rational prudence for one’s own protection. If I go bicycling without a helmet I put myself at risk of serious, avoidable injury. That’s foolish, but strangers who encounter me on the street don’t have standing to complain about it. After all, the risk to others from my cycling is the same whether or not I wear a helmet. My foolishness merely endangers myself. Primary negligence, by contrast, is an other-regarding failure. If I run a red light, I put others as well as myself at risk of serious, avoidable injury. Primary negligence is a failure to conduct oneself with sufficient regard for the urgent interest that others have in the integrity of their persons and property. It is a moral failure to show others the respect that they are owed.

The Interdependence of Primary and Contributory Negligence

Early in his paper Professor Dorfman anticipates and addresses the objection that the justification for the differential treatment of primary and contributory negligence is obvious once we recognize that they are not morally equal. Dorfman parries this thrust with the well-taken observation that primary and contributory negligence are interdependent. In determining how much care I must exercise for others’ protection I need to estimate the risks that my contemplated conduct imposes on others. Often—perhaps normally—the risks that a course of conduct imposes are affected by how much care those the conduct endangers are exercising for their own protection. If I dig a ditch to make repairs to the gas line in front of my property, the risk that others will fall into the ditch depends in part on whether they have normal powers of sight. And if they don’t, the risk to which they are exposed depends on whether they take the precaution of using a cane or a seeing-eye-dog.

To be sure, the casuistry here is surprisingly complex. I may endanger cyclists without helmets, or drivers who don’t buckle their seat belts, more than I endanger cyclists who do wear helmets or drivers who do wear seat belts. Even so, I am probably unable to take different precautions for the two different classes of potential victims and I’m fairy sure that I’m not expected to try. Moreover, the law can respond to recognized “disabilities” by imposing more extensive obligations on those with lesser competence, not by imposing more obligations on those with normal competence. Children may have to stay out of adult activities on pain of being held to an adult standard of care, blind people may have both to adjust their activities (e.g., no driving) and take special precautions (e.g., use a cane).

Indeed, there is a burgeoning doctrinal development that Professor Dorfman might want to ponder as he continues to develop his ideas. The near-universal modern adoption of comparative negligence may be recasting negligence law as a whole in a more subjective mold. In particular, Comment e to § 10 of the Restatement 3rd of Torts the widespread adoption of comparative negligence “weaken[s] the argument for a double standard” under which contributory negligence is essentially subjective whereas primary negligence is essentially objective. As Comment e points out, comparative negligence makes the assignment of relative culpability to a party turn on all the factors that bear on the party’s fault. Individual shortcomings thus come readily into play. Comparativization introduces an aspect of schizophrenia into the law of negligence. The determination of duty and the standard of reasonable competence are fixed objectively but judgments of relative culpability are made subjectively.4 It is far from clear that this development is confined to cases of contributory negligence where the plaintiff endangers only themselves.

Still, it may be a mistake to go too deep into the weeds here. For Professor Dorfman’s purposes it may do to note that, increasingly, we expect people to take precautions for their own self-protection and increasingly we reduce their recoveries when they do not do so. “Seat belt” and “helmet” defenses, for example, are more prominent that they used to be.5 We impose responsibilities of self-protection and penalize people who fail to discharge those responsibilities. This underscores Professor Dorfman’s point. We expect prospective victims to take precautions for their own protection in part because we believe that potential injurers are entitled to rely on prospective victims looking out for themselves in certain ways. To a larger extent than is generally appreciated, negligence law is a system of interdependent, coordinate precaution. It imposes affirmative duties of self-protection on potential victims.

Respecting People As They Are

Various explanations for the imposition of these duties of self-protection come to mind. Outright paternalism is one. It is foolish for people not to wear seatbelts and the law may just decide not to respect some foolish choices. The economic idea that the obligation of avoidance ought to be placed on the cheapest-cost-avoider is another. Dorfman’s conclusion, however, is different. He thinks that the law of negligence is respecting people as they are, not as they ought to be. To appraise his thesis we have to step away from the issue of interdependence a bit and return to the incapacities used to justify lesser self-protection. The cases where the law treats failures of victim self-protection more leniently are cases of disability—physical disability especially. Childhood status is treated as a kind of physical disability and there is some evidence that courts increasingly treat mental disabilities in the same more subjective way that they treat physical disabilities.6 Dorfman’s thesis is that in individuating to take account of these incapacities and fixing the standard of care, the law is showing that its deepest moral commitment is to respectful recognition of people as they are.7 Corrective justice theories, by contrast, are mostly Kantian. Their deepest value is respect for rational nature. Rational nature is only one aspect of people as they are.

This is a very interesting idea. On the one hand, there is genuine moral progress in recognizing the disabled as fully human persons notwithstanding their limitations. The impact of a fully objective standard on them is stigmatizing and tends to drive them out of normal activities. By ignoring the moral significance of genuine disabilities a fully objective standard treats the disabled as less than fully equal. It accords them equal rights on the fiction that they are not as they in fact are and demands the impossible of them. On the other hand, the idea of respectful recognition of people “as they are” strikes me as overbroad. Various features of persons’ “judgment[s] or sensibilit[ies]” as they are do not command our respect. Racist, sadistic and sexist preferences are cases in point. In negligence law, so too are the shortcomings of people who are just too lazy to acquire the competencies necessary to conduct dangerous activities safely.

Negligence law seems to bend away from objectivity on a narrower principle than respectful recognition of people as they are. It individuates in the face of disability, doing what it can to enable those with significant, identifiable impairments to engage in ordinary activities without being subject to impossible burdens, and with special slack cut for their more limited capacities to protect themselves. The fact that negligence law both recognizes affirmative duties of self-protection and relaxes those duties for persons with identifiable impairments may teach the general lesson that negligence law is a practice committed to the promotion of a good which can only be realized through cooperative efforts. That good, in a word, is safety and safety is in part a public good. It can only realized if people do their parts by taking the coordinate precautions demanded by a system of mutually beneficial precaution. Within that system particular doctrines are often the expressions of complex value judgments. We therefore need richer, less reductionist tort theories.

Negligence and Accommodation shows persuasively that our actual doctrine of contributory negligence does not match the accounts of negligence given either by law and economics or corrective justice theory. And it shows that the departures are important enough to require us to revise our theories. The economic theory of negligence is inadequate to our actual law of contributory negligence because its focus on overall welfare has no place for doctrines whose contours are shaped by complex considerations of what people owe to one another. Contributory negligence is sensitive to the differences between what we owe to others in the way of primary duties of care and what can be demanded of each of us in the way of responsible self-protection, and because it registers the moral significance of disability as a status. Corrective justice theory, for its part, is committed to an idea of equal liberty so general and so formal that it cannot accommodate morally relevant distinctions between what we owe to others and what we owe to ourselves, and struggles to accommodate the moral significance of physical and mental limitations. And corrective justice theory may be so attached to the idea that tort law is a domain of negative duties that it is unable to recognize the extent to which negligence law is a practice which promotes an important value in a way which involves the imposition of affirmative duties. In teaching these lessons, Negligence and Accommodation makes an important contribution to tort theory.

  1. One might quibble with Dorfman’s way of formulating it. To my mind, two-part tests are rather common in this corner of the law. The first step is subjective: particularize the standard of care owed to the category of people with the disability in question (e.g., blindness). The second step, however, is objective. Hold the disabled person at issue to the standard of conduct of an objectively reasonable person with the disability in question. See e.g., Mastland Inc. v. Evans Furniture, Inc., 498 N.W.2d 682, 684 (Iowa 1993) (summarizing the standard of care applicable to children by writing: “The jury’s first inquiry is a subjective one: What was the capacity of this particular child—given what the evidence shows about his age, intelligence and experience—to perceive and avoid the particular risk involved in this case? Once this has been determined the, the focus becomes objective: How would a reasonable child of like capacity have acted under similar circumstances?” This quibble doesn’t undermine the essential soundness of Dorfman’s argument. []
  2. Except perhaps for Fleming James. See Fleming James, The Qualities of the Reasonable Man in Negligence Cases, 16 Mo. L. Rev. 1, 1–2 (1951). Dorfman might want to say more about James. []
  3. See Vaughan v. Menlove 3 Bing., N.C. 468 (Common Pleas, 1837). []
  4. See e.g., Champagne v. United States, 513 N.W.2d 75, 81 (N.D. 1994). Plaintiff, who was under treatment for “suicidal ideation” committed suicide. In a suit for medical negligence, duty was determined objectively. Reasonable people don’t commit suicide. But relative fault was determined subjectively. “In making the fault comparison, the factfinder should always take into account the extent of the patient’s diminished mental capacity to care for his own safety. . . . A mentally ill person can only be held to the degree of care that his diminished capacity permits.” []
  5. See e.g., Waterson v. General Motors Corp., 544 A.2d 357 (N.J., 1988); Halvorson v. Voeller, 336 N.W.2d 118 (N.D. 1983); Dan B. Dobbs, Dan B. Dobbs, The Law of Torts, § 231 (2d ed.). Technically, these doctrines fall under the “doctrine of avoidable consequences.” []
  6. In addition to Champagne, supra note (holding that a “mentally ill person can only be held to the degree of care that his diminished capacity permits.”), see e.g., Breunig v. American Family Ins. Co., 173 N.W.2d 619 (Wis. 1970) (applying, implausibly, the test used for sudden physical disability to the onset of delusion); C.T.W. v B.C.G. & D.T.G., 809 S.W. 788 (Tex. Ct.App. 1991) (holding that it is reasonable to expect a pedophile to avoid situations where they would be alone with young boys; this holding treats a psychological disability in the way that physical disabilities are commonly treated); and Berberian v. Lynn, 809 A.2d 865 (N.J. Super. 2002) (ruling that a “flexible capacity-based standard is appropriate when considering the potential negligence liability of Alzheimer’s patients . . . towards their care-givers”). Berberian followed Cowan v. Doering, 545 A.2d 159 (N.J. 1988); but see, Dobbs, supra note 7, § 130 (asserting that the rule that “mentally impaired persons are liable for their torts seems to be rather fully accepted). []
  7. “[T]he notion of respectful recognition under discussion puts forward a demand to acknowledge the distinctive subjectivity and sensibility of others by accommodating their judgment or sensibility in our own practical lives.” (P. 32, emphasis in original). []
Cite as: Gregory Keating, Is Negligence Law Less Objective Than We Think?, JOTWELL (September 14, 2015) (reviewing Avi Dorfman, Negligence and Accommodation: On Taking Other People as They Really Are, (2014), available at SSRN),