Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
Judgment for the defendant. All concurred.
Notes
1. A social endeavor. The plaintiff in Cooley tried to prove negligence by focusing on the
costs and benefits of the defendant’s actions in relation to her. Judge Page rejected this argument,
demonstrating the courts’ use of cost-benefit analysis as a social—rather than private—
calculation; he analyzes the reasonableness of the defendant’s safety technology as applied to all
foreseeable plaintiffs. Does this make sense? How well do you think a social cost-benefit
analysis fits into the plaintiff-driven, two-party nature of the tort system?
2. Activities and activity levels—and the strict liability alternative. The plaintiff in Cooley
offers an alternative technology to make operating phone lines safer. But what if the act of
operating phone lines with due care is not enough? What if engaging in the activity itself is
negligent? Can the tort system deter activities that are unsafe because of the levels of the activity
that people engage in? Steven Shavell criticizes the negligence regime for failing to adequately
address the problem of over-participation in unsafe activities:
By definition, under the negligence rule all that an injurer needs to do to avoid the
possibility of liability is to make sure to exercise due care if he engages in his
activity. Consequently he will not be motivated to consider the effect on accident
losses of his choice of whether to engage in his activity or, more generally, of the
level at which to engage in his activity; he will choose his level of activity in
accordance only with the personal benefits so derived. But surely any increase in
his level of activity will typically raise expected accident losses (holding constant
the level of care). Thus he will be led to choose too high a level of activity; the
negligence rule is not “efficient.” . . .
However, under a rule of strict liability, the situation is different. Because an injurer
must pay for losses whenever he is involved in an accident, he will be induced to
consider the effect on accident losses of both his level of care and his level of
activity. His decisions will therefore be efficient. Because drivers will be liable for
losses sustained by pedestrians, they will decide not only to exercise due care in
driving but also to drive only when the utility gained from it outweighs expected
liability payments to pedestrians.
Steven Shavell, Strict Liability versus Negligence, 9 J. LEGAL STUD. 1, 2-3 (1980).
Is there a way to incorporate unsafe levels of activity into a cost-benefit analysis of due
care? Calabresi offers another alternative to the negligence regime to address this problem in his
classic “The Decision for Accidents”:
There are acts or activities that we would bar in our society regardless of the
willingness of the doer to pay for the harm they cause. It is these that we call
“useless” and feel that there is no societal loss in deterring them specifically. But
certainly even if some such activities can be isolated, there are a great many other
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