Private Law Theory

Introduction:
American tort law, through its wrong of negligence, may apply lower liability than the reasonable person standard to a defendant while French fault-based tort liability will always hold a tortfeasor liable for his unreasonable behavior. Indeed, under American law, the plaintiff must prove four elements to hold the defendant liable: the existence of a duty of care, its breach, damage, and causation which is further divided into two parts: cause in fact (as determined under the ‘but for’ test requiring that the plaintiff’s harm would not have occurred but for the defendant’s conduct) and proximate cause (implying foreseeability of the damage). Thus, not all unreasonable behavior causing damage to the victim leads to liability for the defendant. The tortfeasor must first owe a duty to act reasonably toward the victim, so that the breach thereof can cause him to be liable in negligence to the plaintiff for the damage he brought about. If he is not under such a duty or is bound to a lighter duty, he is excused from liability, causing American tort law to be relative. American scholars mostly justified this solution through the protection of the country’s common economic good. Certain actors are to be released from the duty to act reasonably or bound only to a lighter duty when such release far better promotes economic competitiveness and efficiency …

Karel Roynette, Drawing the Line of the Scope of the Duty of Care in American Negligence and French Fault-Based Tort Liability, 8 Journal of Civil Law Studies (2015).

First posted 2015-10-06 13:28:20