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

Witt & Tani, TCPI 4. Negligence Standard
Warren A. Seavey, Negligence—Subjective or Objective?, 41 HARV. L. REV. 1, 8, n.7 (1927). Is
Seavey’s paradox evidence of some logical defect in the law of torts? Note that it is a cop-out to
try to resolve the paradox by reference to the idea that in the probabilistic scenario B has not been
killed. Seavey’s point is that even if B is killed, B’s estate may have no tort action against A,
whereas B would have had a tort action for the intentional destruction of the ten cents.
Can the paradox be resolved by reference to a policy of promoting consensual transactions
when they can be made? Is there a reason to think that intentional tort plaintiffs are identifiable in
advance in a way that negligence plaintiffs are not?
3. The Utility Monster
What if B in Seavey’s paradox values her or his life more highly than A? What if B really
preferred to not be killed—so much so that the expected utility loss of B’s being subject to a ten
percent chance of death would be greater than the utility loss of A’s actually dying? Should these
differentials matter? It is an important question, because we might need to incorporate different
values for different lives in our Hand Formula calculations.
Libertarian philosopher Robert Nozick famously puzzled over the conundrum in
utilitarianism of “utility monsters”: people “who get enormously greater gains in utility from any
sacrifice of others than these others lose.” Nozick objects that the theory of utilitarianism, taken
seriously, “seems to require that we all be sacrificed in the monster’s maw, in order to increase
total utility.” ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 41 (1974). Does the tort system
leave out utility monsters by using an objective negligence standard instead of a subjective one?
Or is the subjective utility of Novick’s monster simply an item to be factored into the Learned
Hand negligence formula? Should it be?
Is the answer different if the value of B’s life is high relative to that of A not because of
B’s subjective utility curve, but because of the high social value of B relative to A? What if A is
an unemployed homeless man with no family, while B is a skilled mayor, a brilliant Steve Jobslike
executive in a Fortune 500 corporation, a virtuoso pianist, or a national hero World Cup
soccer star?
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