Avihay Dorfman, ‘Negligence and Accommodation: On Taking Others as They Really Are’

Abstract:
Disagreements over the morality and the efficiency of the standard of reasonable care are at the root of the study of negligence law (and, perhaps, tort law as a whole). They typically proceed as though the most important question that needs to be addressed is that of the content of this standard, namely, the question of what reasonable care is. However, in these pages I shall argue that there exists another important question, which is to say the manner in which reasonable care is evaluated. This question, I show, is neither fixed by nor subservient to the content of the standard (whatever it is). Rather, the manner in which negligence is being assessed is partly constitutive of the morality of the reasonable care standard.

Whereas the leading economic and justice-based approaches to the explanation of the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms of the interaction between them. This way of attending to the interests of others resonates well with a powerful notion of respectful accommodation of persons — that to attend to others respectfully is to engage them on their own terms (including, most importantly, their distinctive judgments and sensibilities). And to the extent that the standard of care captures the moral center of negligence law, the asymmetry in care assessment suggests that the notion of genuine respect, rather than social welfare or formal equality, is a basic virtue of the legal institution of negligence.

Dorfman, Avihay, Negligence and Accommodation: On Taking Others as They Really Are (December 27, 2014).

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