Search

UTSIDE the field of work injuries, negligence is certainly the dominant concept in accident law today, but the future of its dominance is by no means as clear as it must have seemed at the turn of the century.1 The sources of doubt are several. For one thing, social insurance legislation may engulf the whole, or a large part, of the field of accidental bodily injury law. If it does, the legislation might take the form of comprehensive social insurance for disability from any source, as part of the attack on the general problem of poverty.2 Or, it might take some form of enterprise liability, as workmen's compensation did, such as that proposed for motor vehicle accidents by Keeton and O'Connell.3 There is also the possibility that strict liability may further supplant liability based on fault through the common-law process by judicial decision, as it has already done to some extent in the fields of extrahazardous activities and products liability.4 The first question I shall explore is the effect each of these possible developments would be likely to have on the concept of negligence. Then I shall try to assess briefly the likelihood that such a development will take place. Before we examine what each of these developments might do to negligence, it would be just as well to take a look at what negligence is. For present purposes it has two aspects: (1) it is one kind of legal or moral fault which suffices as a basis for tort liability under a system which by and large insists that liability be based on fault; (2) negli

S o central is the idea of fault to our past and present concept of tort liability, that to inquire about its continued role invites speculation about the very future of civil liability and the function that may remain for it in taking care of the injured in the years to come. In large measure, that future will be determined by the extent to which the task of compensation will increasingly be entrusted to other legal institutions, especially to social security and other forms of insurance. Long-range questions about loss bearing that we have been accustomed to debate solely in terms of tort liability will increasingly demand consideration in the wider context of the whole panoply of social institutions charged with alleviating the lot of the community's unfortunates and allocating the cost in a socially and economically acceptable manner. The part played by tort law in that task is bound to shrink to ever more modest proportions, to the point where today's postulates, based on very different assumptions about its work load, will be doomed to irrelevance. That time however has not yet come. In the short run, therefore, it is perhaps not entirely idle to venture a summation about the place of negligence within the modest perspective of today's and tomorrow's orientation.