Negligence Without Fault PDF Download

According to conventional wisdom, negligence is a unique tort. It is different from strict liability because it is based on fault. Although it shares fault with intentional torts, negligence's version of fault is different because it arises from the objective standard of reasonableness. This orthodox view has existed for nearly a century and has never been challenged. Even today, no one questions the strength of tort law's theoretical superstructure or the truth of the assumptions upon which it is based. In fact, the American Law Institute, which currently is in the process of restating tort law's basic principles, has made no effort to alter or even reexamine this framework. This article contends that such a reexamination is not only desirable, but necessary. Focusing on the theory of negligence, it exposes the many faults in tort law's current theoretical paradigm. The analysis proceeds in four parts. The first part reconsiders and compares the concepts of fault and reasonableness. It argues that the two ideas are not synonymous, and concludes that a classical-liberal conception of reasonableness comes closest to explaining and justifying the modern theory of negligence. To defend this conclusion, the second part of the article turns to two of negligence's "hard cases": the no-duty-to-rescue rule and the standard of care for mental incompetents. It reveals that the fairness-based notion of reasonableness provides a far more satisfying account of these difficult doctrines than the more deontological concept of fault. With the law's internal inconsistency resolved, part three explores negligence's external fit with other tort theories, beginning with intentional torts. It shows that negligence and intentional torts are more alike than different, sharing both a flexible approach to procedure and a substantive commitment to reasonableness. The last part continues the analysis of fit, this time examining the supposedly more impenetrable barrier between negligence and strict liability. Instead of supporting this divide, however, it shows that negligence already contains many de facto strict liability doctrines, and with its core concept of reasonableness, possesses all it needs to relax or stiffen its requirements in all types of cases, including cases now covered by theories of strict liability.