This article is about a fascinating, unexplored paradox in negligence doctrine. Respected treatises and textbooks tell us that proving breach does not require knowing anything about the defendant’s mental states. Deciding whether the defendant’s conduct was objectively unreasonable should be based solely on his external, observable conduct. This distinguishes civil negligence from the more moralistic criminal law, by avoiding the messiness of mens rea inferences. At the same time, most jurisdictions have incorporated the ‘reasonable foreseeability’ test for duty, breach, and proximate cause – a test that I will demonstrate requires interrogating what the defendant subjectively knew, perceived, and imagined. This creates a confusing form of doublespeak, where mental state inferences exist everywhere while not being explicitly allowed anywhere.
I submit that foresight is considered a ‘malleable standard’ and ‘vexing morass’ precisely because of this doublespeak. We have failed to recognize that foresight is an epistemic, mental state. Its evaluation by jurors therefore occurs in the shadows of the law, without any judicial instruction or guidance. Once we appreciate that foresight is an epistemic state, we can see how it maps directly on to the psychological construct of ‘episodic foresight’, a process which has been rigorously studied. Relying on this established literature, I deconstruct the psychological components of foresight to imbue the legal concept with greater precision and validity.
My analysis reveals a few key things. First, when outcomes are bad, assessments of foresight are notoriously inflated, often in counterintuitive ways. Second, foresight always depends on the defendant’s idiosyncratic mental states and values (such as the avoidance of guilt, semantic knowledge, or prioritizing short-term gains), which often cannot be labeled objectively unreasonable or reasonable. Finally, on average, healthy adults are terrible at anticipating and predicting the future. Because jurors are not instructed on the necessary components of foresight, and how fallible each of them is, they likely fail to calibrate ‘reasonable foreseeability’ to a norm of poor performance.
Considering the foregoing, I propose significant revisions to the way jurors are instructed on the elements of negligence, which I also reshuffle to distinguish the descriptive inquiry from the normative one.
Brown, Teneille R, Minding Accidents (August 2, 2021).