Should a doctor who performed a vaginal delivery be held liable for the harm that delivery by cesarean section would have prevented, if according to the information available prior to delivery, the baby’s estimated size warranted a c-section but after delivery, its actual size emerged to be less and not mandating cesarean delivery?
More generally, consider an injurer whose injurious behavior is considered reasonable according to the information available to the court at the time of the trial: Should he be held liable under negligence law for the harm that resulted from his behavior if according to the information that was available to him at the time he acted, that behavior would have been deemed unreasonable? The intuitive, yet wrong answer to this question is no: the injurious behavior is not negligent, and negligence law does not impose liability for non-negligent behavior. The claim made in this Article is that the counterintuitive answer of yes is the correct one. If this claim holds, many plaintiffs who have suffered harms from non-negligent behavior could successfully sue their injurers. Yet it is puzzling that there are no reported cases of plaintiffs who have explicitly based a claim under negligence law on the defendant’s non-negligent behavior.
The Article bases its claim for negligence liability for non-negligent behavior on both efficiency and corrective justice grounds. The Article extends this claim also to product cases, arguing that consumers who have suffered harm from non-defective products should succeed in trial if they can show that at the time of the product’s distribution, the manufacturer should have suspected – erroneously, in retrospect – the product to be defective in its design but failed to produce a safer product.
Porat, Ariel, Negligence Liability for Non-Negligent Behavior (September 30, 2012). University of Chicago Institute for Law & Economics Olin Research Paper No. 617.