Reasonable Care in Tort Law: The Duty to Take Corrective Precautions

Abstract

The corrective precautions rule states that there is a duty to use reasonable care to anticipate and eliminate risks created by the negligence of others. Contrary to holdings in hundreds of cases, economics assume that there is no such duty. This article demonstrates how this assumption is critical to economists' reasoning leading to the conclusion that all of the various forms of negligence rule - pure negligence (no defenses allowed), contributory negligence, and comparative negligence - create desirable (wealth maximizing) incentives. This article sets out a framework for a humanist and feminist critique of the economic analysis of negligence rules, setting the stage for a reconsideration of the economic analysis of the "no duty" and "corrective precautions" rules and for an efficiency analysis that recognizes the concerns of these alternative perspectives. We demonstrate from this combined perspective that the reasoning of contemporary economic analysis of the no duty rule is incorrect. We conclude that, from either an efficiency or an ethical perspective, the corrective precautions rule is superior.

Keywords: reasonable care, duty, tort law, corrective precautions, economic efficiency, feminism, humanism, last clear chance, negligence, wealth maximization