The most fundamental feature of negligence law is the ‘reasonable person’ standard. This feature bases negligence law on a strictly objective foundation: it requires people to behave in the prudent way that, as Holmes explained, the ordinary, typical member of their community observes. In this Article we argue that with the increasing availability of information about actors’ characteristics, negligence law should give up much of its objectivity by allowing courts to ‘subjectify’ the standard of care — that is, to tailor it to the specific injurer’s tendency to create risks and her abilities to reduce them. We discuss the effects of this personalization of the standard of care on injurers’ and victims’ incentives to take care, injurers’ activity levels and the injurers’ ex ante investments in improving their skills. We also discuss justice considerations as well as the feasibility of personalization with the aid of Big Data.
Ben-Shahar, Omri and Porat, Ariel, Personalizing Negligence Law (September 1, 2015). New York University Law Review, 2016 forthcoming; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No 731.