The Innocence of Negligence

IntroductionIt simply cannot be maintained that negligence is morally blameworthy. It therefore cannot be maintained that negligence liability achieves corrective justice by transferring a wrongful loss from one who is innocent to one who is to blame. Those who find fault with negligence fail to take seriously the absence of fault in any instance of true inadvertence, however harmful its consequences; and they are thus at fault for constructing a theory of corrective justice that fails to do justice to those who unthinkingly cause harm to others. Or so I will argue in this article. If such a claim boils the blood from the outset, let me assure you that I realize its perversity. It is a claim that runs against hundreds of years of case law and scholarship, and therefore, a claim that begs for rejection. I myself have worked hard to reject it. It offends my strongest intuitions, and it is an indictment of the standard theoretical view of corrective justice to which I have long held an allegiance.1According to the view embraced by most tort theorists who take the goal of accident law to be corrective justice, there is no justice in imposing liability "strictly" - that is, without a finding of moral fault on the part of persons whose actions cause injury to others. But when the costs of accidents are transferred to parties whose negligent failure to appreciate the risks of their actions was a proximate cause of those accidents, tort law is vindicated by the corrective justice that it achieves. If one cannot morally condemn a person's inadvertence to a risk, however - even in circumstances in which that inadvertence strikes us all as outrageous - then negligence liability inevitably fails to achieve corrective justice. Put differently, if one cannot find fault with negligence then negligence liability is a form of strict liability. Those who embrace and advance a corrective justice theory of tort law thus have three choices: (1) they must give up their conviction that tort law should be in the business of correcting injustices; or (2) they must give up their conviction that injustices occur only when persons cause legally-recognized harms to others in ways that are blameworthy; or (3) they must denounce negligence liability in tort law and work towards the adoption of doctrinal requirements that genuinely map civil liability onto conditions of moral blameworthiness - by, for example, requiring that defendants be at least reckless (if not knowing or purposive) with regard to the harms their actions cause.It is the burden of this article to make this tripartite choice inescapable; that is, to defend my reluctant conclusion that negligence liability is not fault-based liability. Let me begin, however, by disentangling and setting aside tempting misinterpretations of my project. First, it would be natural, but wrong, to assume that the thesis I am advancing is simply the standard claim that Oliver Wendell Holmes made so eloquently in 1881 in The Common Law,2 and that torts professors enjoy extracting from their students when they introduce them to the concept of negligence in their first year courses; namely, that sometimes an objective standard of conduct of the sort captured by "the reasonable person test" will result in the imposition of liability on those who cannot meet such a standard - that is, on persons whose natural limitations make a mockery of that goal. As Holmes famously put it:If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account. ... The law considers, in other words, what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that. …