Abstract
The duty-of-care requirement cannot be used anymore as the touchstone to differentiate negligence from strict liability because it can be found in many forms of the latter. Duty of care is smuggled into strict liability hidden under the scope of liability requirement (traditionally called “proximate causation”). As far as the scope of liability requirement is common to negligence and to many forms of strict liability, there is a fairly large common ground to both liability rules, and consequently the marginal Hand formula is applied to both rules. Indeed, under a negligence rule, the marginal Hand formula is applied twice: first to assess whether or not the defendant did breach his or her duty of care, and, second, to delimit whether or not the defendant’s behavior was a proximate cause of the harm suffered by the victim. However, under a strict liability rule, the Hand formula is applied only once when the proximate causation question is raised. Traditional law and economics analysis has almost always taken the normative question raised by the causation requirement as given, which is a potential major problem due to the importance of scope of liability or proximate causation in legal practice. Defining the scope of liability, that is to say, the boundaries of the pool of potential defendants, is the basic legal policy decision for each and every liability rule. In the normative model presented in this paper, the government first chooses efficient scope of liability, and given the scope of liability, the government then decides the liability rule and damages that guarantee efficient precaution. In the article, most known scope of liability rationales developed by both common law and civil law systems are discussed in order to show the substantial common ground between negligence and strict liability.
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Notes
Henderson and Twersky (2000), 659.
See also Shavell (2003), 182, 185. Prosser (1984), 534: “[strict] liability (…) is imposed on an actor apart from either an intent to interfere with a legally protected interest without legal justification for doing so, or a breach of a duty to exercise reasonable care. This is often referred to as liability without fault”. Dobbs (2000), 941 “Strict liability is liability without fault. The defendant is subject to liability for conduct that amounts neither to negligence nor to any intentional tort.” Posner (2007), 177: “Strict tort liability means that someone who causes an accident is liable for the victim’s damages even if the injury could not have been avoided by the exercise of due care.” Doctrinal analysis tends to define strict liability in a negative way as opposed to negligence: Strict liability is liability without fault.
Calabresi and Hirschoff (1972), 1057: “Learned Hand’s test for fault defines the defendant’s duty of care as a function of three variables: (1) the probability that the accident will occur, (2) the gravity of the injury which will be suffered by the victim if the accident does occur, and (3) the burden of precautions adequate to prevent such accidents. If the cost to the defendant of avoiding the accident would have been less than the cost of the accident, discounted by the probability of its occurrence, the defendant’s failue to avoid the accidents is termed negligence.”
Miceli (2008), 41: “In a sense we can think of negligence as a combination of no liability and strict liability, where the two are separated by a ′threshold′ based on the injurer′s level of precaution”. Shavell (2004), 230: “[T]here is an element of strict liability –of having to pay for harm done- associated with the use of the negligence rule”.
See Faure (2001), 362–363.
American Law Institute, Restatement of the Law (Third): Torts, Liability for Physical and Emotional Harm (Basic Principles; Tentative Daft No. 5, current through August 2007).
But not always. Contrast Calabresi (1975), 71 (where a triple distinction between causal link, but for cause and proximate cause is introduced), and Henderson and Twersky (2000), 664 (distinguishing between “but-for condition”, and—in negligent cases—“proximate causation” and “result-within-the-risk”).
As Dobbs (2000), 443, explains, “Proximate cause rules (…) seek to determine the appropriate scope of a negligent defendant’s liability. The central goal of the proximate cause requirement is to limit the defendant’s liability to the kinds of harms he risked by his negligent conduct. Judicial decisions about proximate cause rules thus attempt to discern whether, in the particular case before the court, the harm that resulted from the defendant’s negligence is so clearly outside the risks he created that it would be unjust or at least impractical to impose liability.”
See also Kahan (1989), 427.
The minimalist approach to causation of Law and Economics is paradigmatically incarnated in Cooter and Ulen’s handbook (2007), 315-316: “One person harms another when the variables that he or she controls lower the utility or production of someone else. (…) ′Cause′ in tort law typically involves an externality created by interdependent utility or production functions”. Even more radically Shavell (2004), 251–252: “Is it necessary [under the negligence rule] to allow parties to escape liability when they are not the cause of losses in order for their incentives to be correct (as it is under strict liability)? [T]he answer is that there is no need to allow parties to escape liability for negligence if they do not cause losses, but optimal incentives are maintained even if they do escape liability if they do not cause losses. In other words, basic incentives to take due care are correct whether or not there is a causation requirement”. But this is perhaps only because, as Shavell writes in footnote 34, the model of precaution assumes that “the socially desirable level of care implicitly reflects causation; care is socially valuable only to the degree that it can reduce accident loses in circumstances in which losses would otherwise result”. Then, the remaining question is who, among all of us, are to be the subjects of the duty of care?
“It has already been noted that the Learned Hand type tests are more ‘interventionistic’, more collective, than is the strict liability test. (…) It is not hard to see that [negligence] involves a greater degree of state involvement than that implied in the strict liability test. The latter implies state intervention only to decide which category can best determine whether an action is worthwhile, and this in turn implies less risk that traditional kinds of collective considerations will come into play.” Calabresi and Hirschoff (1972), p. 1084.
See Jansen (2003), 565–567.
Shavell (1980), 1–25; introduced the distinction between the level of activity and the levels of care. Landes and Posner (1987), 66: “The most interesting respect in which negligence and strict liability differ concerns the incentive to avoid accidents by reducing the level of an activity rather than by increasing the care with which the activity is conducted”. In the same vein, Shavell (1987), 24: “Under both strict liability and the negligence rule injurers are led to take socially optimal levels of care, but under the negligence rule they engage in their activity to great an extent because, unlike under strict liability, they do not pay for the accident losses they cause”, and recently Shavell (2004), 205: “As stressed in the analysis, the use of strict liability rather than negligence rules in areas of behavior where activities create high risks, despite the exercise of reasonable care, has the advantage of tending to reduce in a desirable way participation in these activities. This theoretical advantage seems consistent with reality in the sense that the impression given by the foregoing section is that the areas of activity covered by strict liability are generally more dangerous than those covered by negligence rules (certainly the reverse is not true).”
Shavell (2003), 189: “The notion of least-cost avoider applies in situations in which the risk of accidents will be eliminated if either injurers or victims take care. In such situations it is clearly wasteful for both injurers and victims to take care; rather, it is optimal for the type of parties who can prevent accidents at least cost –the least-cost avoiders- alone to take care.”
Epstein (2004), 596 (emphasis in the original).
For simplicity we use levels of investment in reducing the probability of an accident, however, we could define x i as the vector of all possible measures taken by individual i to reduce the probability of accident in all possible states of the world.
In both cases, negligence can be defined as “Negligence as risk. The defendant must have breached his duty of care to the plaintiff. When the defendant owes a duty of reasonable care, the defendant breaches that duty by conduct that falls short of such care, that is, by conduct that is unreasonably risky. Juries, not judges, decide whether the defendant was negligent unless the question is too clear to permit different evaluations by reasonable people” and “Negligence as breach of duty. Sometimes jurists define negligence as a breach of duty of care. In this definition, you are not negligent, or at least not actionably negligent, if you were under no duty of care, no matter how unreasonably risky your conduct might be. Judges who define negligence as a breach of duty wrap the duty and the negligence issue together.” (Dobbs 2000, 270).
See Comment (d) to the §1, Intent, Recklessness, and Negligence: definitions, Restatement (Third) of Torts: Liability for Physical Harm (Basic Principles) (Current through April 2005) Proposed Final Draft, Chapter 6, Scope of Liability: “An intentional tort requires that the actor desires the harm to occur, or knows that the harm is substantially certain to occur (…) in a typical negligence case harm is possibility but not a certainty.” See Henderson and Twersky (2001), 1133.
The doctrine is paradigmatically expressed in Brown v. Kendall (60 Mass. 292 (1850)). Brown’s dog and Kendall’s dog were fighting. Kendall started beating the dogs with a stick to try to break up the fight. He hit Brown in the eye while raising the stick over his shoulder. Brown sued for assault and battery. According to the decision, if the act was unintentional, then the plaintiff can collect on an action only if the defendant acted without ordinarily care and the plaintiff acted with ordinary care.
“For example, in the best-known case, Byrne v. Boadle (2 H&C. 722, 159 Eng. Rep. 299 (1863)), the plaintiff was hurt when a flour barrel fell from the defendant’s premises. The plaintiff did not allege any specific act of negligence, but the court thought res ipsa loquitur, the thing speaks for itself. But suppose that, in contrast, the defendant’s negligence had been identified: he had negligently failed to inspect the ropes securing the barrel. Given a specific claim of negligence, the but-for test could be applied asking whether a reasonable inspection would have revealed that the ropes were dangerous. If the defect in the rope was hidden and would not have been discovered upon reasonable inspection, the plaintiff would have proved specific negligence but would have lost on the-but-for issue.” (Dobbs 2000, p. 419).
In Spanish Law strict liability prevails in public law and negligence in private law, but actual differences between similar cases are low or inexistent: so iatrogenic injuries in medical malpractice cases are decided on the same path whether the patient was hurt in a public hospital or in a private clinic; similarly, school accidents cases are similarly adjudicated independently of whether they took place in a public or in a private school. See Salvador et al. (2003), 4–7.
See Malone (1956).
Epstein′s casebook begins the Section of Proximate Causation with a rather famous—and fastidious—quote of “The Elements of the Common Laws of England” of Francis Bacon: “Reg. I. In jure non remota causa sed proxima spectatur. If were infinite for the law to judge the causes, and their impulsions one of another; therefore if contenteh itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.” Apud Epstein (2004), 435.
The Harm-Within-The-Risk test clarifies the Foreseeability Test. See Abraham (2002), 120.
Thomas J. Miceli, when analyzing the General Transaction Structure, distinguishes between the “producer” of the external harm, and the “recipient” of the harm: “The producer is the physical cause of the harm (…), and the recipient is the bearer of the harm (…). We use these terms because (…) the terms injurer and victim connote a particular assignment of the right” (Miceli (2008), 181–182). Talking about injurers and victims involves talking about rights and duties. The whole quote is a confession: The idea of duty pollutes the model, and the sanitized concepts of producer and recipient are perhaps not extremely useful, but most probably incapable to do any decent legal job in real practice. Indeed causal relativism follows the assignment of the basic entitlement: tort liability models assume a Pigouvian—preCoasean—view of causation (of externalities) because they take for granted that there is a unique cause of harm—that there is an injurer. But, as Coase showed, both parties are “simultaneously causes of the harm” because they happen to be there, at the same place and time when their interaction results in harm for one or both of them. See Miceli (2008), 168–171.
Mainstream Law and Economics handbooks, doctrinal analysis treatises and casebooks begin the chapters on negligence and strict liability dealing with models of unilateral care and, afterwards, bilateral care models of contributory and comparative negligence and of strict liability with a defense of contributory negligence are, respectively, developed. This way of presentation is well justified for the sake of simplicity. But the models do not mirror reality: In real life, bilateral care is paramount. Indeed, in most cases arguably the victim’s behavior could be considered relevant to the causation of harm. Doctrinal analysis defines ‘Accident’ in individual terms: according to Shavell (1987). 6, 9–10, accidents are unilateral when “injurer’s behavior will be assumed to affect accident risks, but victim’s behavior will not. In other words, victims will have no role in the analysis.” In the bilateral version of the model “it is assumed that victims as well as injurers can take care and thereby lower accident risks. The way in which injurers choose to behave may depend on the way victims behave, and conversely”. Similarly, see Miceli (1997), 16–20. Standard models of efficient care in bilateral causation confront negligence with strict liability and usually conclude that the latter is a better solution than the former because strict liability rule makes feasible a double and simultaneous control of level of care and level of activity. But the distinction is subsequently blurred when authors write that strict liability rule does not work well in bilateral care without a defense of contributory or comparative negligence. Therefore, the outcome is that the duty of care is first expelled from the defendant’s sphere of influence, but only to reenter into the victim’s house. Unilateral care models assume that pure strict liability is superior to the negligence rule because the former controls degree of care and level of activity as well. We have already discussed this assumption supra. Now, we focus only in the fact that, in bilateral care, there is not such rule as pure strict liability without a comparative negligence defense. If so, the common ground to negligence and strict liability due to proximate causation doctrines is increased by the indispensability of resorting to comparative negligence doctrines in bilateral care: we do not know of many fields of strict liability which do not include a defense of contributory negligence. Then, given that bilateral care is paramount in real life, these are two strong additional reasons to defend that liability rules are situated in a continuum between pure subjective liability for breach of a duty of care and strict liability for uncertain harms.
See for German law of Torts, Medicus (2003), 410.
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Acknowledgments
We are indebted to John Barcelo III, Fernando Gómez-Pomar, Henry Hansmann, Jim Henderson Jr, Lewis Kornhauser, Robert D. Cooter, Robert C. Post, Reinhard Zimmermann and the participants at the 2006 CLEF meeting for useful comments that greatly improved this paper. Useful comments from one referee are also gratefully acknowledged. Yeny C. Estrada provided excellent research assistantship. Of course, the authors are responsible for any remaining errors. Nuno Garoupa acknowledges financial support by the Portuguese FCT, POCTI/ECO/44146/2002 and PPCDT/JUR/55752/2006. Pablo Salvador-Coderch and Carlos Gómez-Ligüerre acknowledge by the Spanish Ministry of Science (BJU2001-0936) and the Catalan Government (2001 SGR 00277).
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Salvador-Coderch, P., Garoupa, N. & Gómez-Ligüerre, C. Scope of liability: the vanishing distinction between negligence and strict liability. Eur J Law Econ 28, 257–287 (2009). https://doi.org/10.1007/s10657-009-9104-z
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DOI: https://doi.org/10.1007/s10657-009-9104-z