The Fault of Not Knowing: A Comment

Abstract

In a recent paper, George Fletcher points out a surface anomaly in the tort system's adherence to a fault standard (under the banner of negligence), and its correlative refusal to excuse, under ordinary circumstances, the individual who in good faith attempts to exercise reasonable care but simply falls short of the mark. If an actor injures another through inadvertence, Fletcher observes, the situation appears on its face to be one in which tort, in the guise of negligence and contrary to its grounding in fault, is assigning liability in the absence of personal culpability. The objective standard universally recognized in obeisance to "the reasonable person" seems to weave a strand of strict liability into the tapestry of negligence. The central theme in Fletcher's paper is to show how negligence, in the sense of "the fault of not knowing," remains centered on a foundation of personal blameworthiness, despite its surface appearance of adhering to an external standard of conduct that the risk-imposing individual may be incapable of satisfying. In this comment, I begin by indicating where I find common ground with Fletcher. In fact, I will suggest that his "fault of not knowing" rests on a well-established notion of the role of custom in tort law. But I then indicate through discussion of leading tort scholarship and cases that his broader thesis - that once acknowledging the fault of not knowing, negligence can be squared with personal blameworthiness - cannot withstand sustained analysis. In a final section, I open the inquiry still further by briefly commenting on the constraining effect of addressing the problem of remedies for accidental harm exclusively in terms of fault and strict liability.

JEL Classification: K13