Kenneth Abraham, ‘Strict Liability in Negligence’

This Article, written for a Symposium in honor of Robert Rabin, argues that some forms of liability imposed in negligence are more like strict liability than negligence. For example, under the objective standard of negligence, liability may be imposed even when the defendant was not capable of exercising what counts as reasonable care. Similarly, under certain circumstances reasonable care requires perfect compliance with precautionary requirements. Finally, the “thin-skull” rule imposes liability on a defendant who negligently risks harm to a foreseeable plaintiff even if the amount of harm this plaintiff suffers is far in excess of what was foreseeable. In the first example the defendant is liable even if he does his best. In the second example the defendant is liable unless he achieves perfect compliance. And in the third example the defendant is liable for something he could not foresee. Imposing liability for negligence in these situations resembles strict liability. At the least, these forms of negligence liability certainly are “stricter” than many others. The Article examines the rights-based and instrumental roles played by these forms of liability in reflecting norms of responsibility, reducing information and error costs, influencing activity levels, and promoting the insurance of losses.

The analysis has two implications. The first is that negligence is not the pure type of liability that it is sometimes thought to be. The existence within negligence of several forms of liability that are strict, or at least “stricter” than the core negligence paradigm, weakens the claim that negligence liability may have to moral superiority over strict liability. I argue that part of the reason negligence has maintained its dominance of accident law, and part of the reason strict liability has not become more dominant, is that negligence has incorporated stricter liability within it. The second implication of my analysis is that the normative character of tort liability is more complex, and perhaps more ambiguous, than either rights or instrumental theories standing alone can easily capture. One of the most interesting things about the instances of strict liability in negligence is that, whether we call them strict liability or deny them this status, there seems to be widespread agreement that they are normatively attractive. This confluence of support on the merits for doctrines whose status itself is contested suggests that tort law doctrines may need to satisfy both instrumental and rights-based concerns in order to be stable and persistent. A negligence system that purports to condition liability on the commission of wrongs, but also sometimes imposes stricter liability for conduct that is not so clearly blameworthy, would seem to be influenced in practice by the same instrumental considerations that support the imposition of strict liability. Conversely, instrumental justifications for tort doctrines are likely to be unpersuasive when these doctrines do not also satisfy rights-based concerns. Whether or not our system of accident law has mixed “goals,” then, it certainly appears to be subject to mixed side-constraints.

Abraham, Kenneth S., Strict Liability in Negligence (August 15, 2011). DePaul Law Review, Forthcoming.

First posted 2011-09-03 13:54:53

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