Harm Screening Under Negligence Law

Abstract

The law of negligence has always faced two basic challenges. The first is how to determine whether the conduct of an actor was undesirable, or careless, at the time it occurred, namely whether the actor was at fault. Did the risks that were generated by the conduct render it faulty ex ante? The second challenge is to determine ex post the scope of liability for any given faulty conduct. Specifically, for which harms caused in fact by faulty conduct is the actor liable and for which is he or she not? This is the screening challenge.

Screening, which is the subject of this chapter, raises two central and interrelated sets of questions. First, once it is established that the actor’s conduct was faulty, and that it was the cause-in-fact of the plaintiff’s harm, what are the justifications, and what should the criteria be, for excluding certain harms from the scope of liability? The second set of questions has to do not with substance but rather with form. Which ‘legal devices’ are best designed or best suited to perform the screening task given its justifications and criteria?

Keywords: negligence, conduct, fault, risk, ex ante, ex post, liability, harm, screening