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

Witt & Tani, TCPI 4. Negligence Standard
Note
1. Common carriers. How is the negligence standard applied to United Airlines different
from that applied to an ordinary negligence defendant? Common carriers, traditionally including
innkeepers, landowners, and railroad operators, have been historically held to a higher standard of
care. Judge Kozinski’s opinion seems to follow this tradition. Is a standard that holds a common
carrier liable for even the slightest negligence actually different from a reasonable care standard?
Would it be rational to do “all that human care” can do in order to prevent injuries from
accidents? Will tort law damages induce a common carrier to take such steps? Does cost-benefit
analysis still have a role to play for common carriers?
5. Claim Resolution in the Real World
So far in our consideration of the negligence standard and cost-benefit calculations we
have proceeded as if parties in the real world engage pervasively in the kind of case-by-case costbenefit
thinking that the Learned Hand test and its variations contemplate. But of course, in the
real world, the decision to adopt such a strategy is itself subject to a cost-benefit analysis. In
many of the most common tort situations, case-by-case evaluations have fallen away in favor of
what are essentially mass settlement systems.
Rules of Thumb in Auto Collision Cases
How do we define negligence in car accident cases? In a sociological study of how car
insurance companies’ claims adjusters determine settlement amounts, H. Laurence Ross (1980)
found that insurance adjusters used easy rules of thumb—like whether a traffic rule was
violated—to determine liability in an accident, “regardless of intention, knowledge, necessity, and
other such qualifications that might receive sympathetic attention even from a traffic court judge.”
In rear-end collisions, adjusters routinely did little investigation, giving a strong presumption of
liability to the rear driver. When a claimant had the formal right of way in the case of a stop sign
or green light, there was usually little follow-up investigation before paying the claimant. He
found similar rules of thumb for most other forms of auto accidents, including head-on collisions,
sideswipes, left-turns, and one-car cases. Instead of engaging in the complexities of the
reasonably prudent person standard, or any other aspect of the negligence standard, car insurance
adjusters rely on these rules of thumb to determine the vast majority of auto accident settlement
amounts. H. LAURENCE ROSS, SETTLED OUT OF COURT 98-104 (1980).
What does this mean for our understanding of the tort system as a provider of
individualized justice? Does every plaintiff get her day in court? John Witt and Samuel
Issacharoff examined how privatized information aggregation takes place in “mature torts”—torts
with common fact patterns like the car accidents Ross studied in Settled Out of Court. They argue
that the existence of repeat-play lawyers and claims agents on both the plaintiffs’ and the
defendants’ side “permits private settlement systems to emerge based on the information the
agents possess about the value of claims in the retail litigation market of adjudication.” Over
time, they claim, these private settlement systems depart substantially from the explicit negligence
calculus of the Learned Hand test. In the aggregate, the standardized negotiations of the repeat-
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