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ARTICLE
THE ATTRIBUTES OF CARE AND
CARELESSNESS: A PROPOSED NEGLIGENCE
JURY INSTRUCTION
NELSON P. MILLER*
The “care” that is at the heart of tort law’s great and ancient civil duty
deserves more study and clearer definition from the lawyers who are its
advocates and guardians. Care deserves greater attention in the instruction
of law students, in the practical selection and presentation of tort cases, in
the judicial and legislative shaping of tort law, and most specifically in the
instruction of juries, because it occupies the central place justifying tort law
as a tool of ordered liberty. We teach torts, we argue tort cases to juries,
and we reform tort law, all without an adequate understanding of what it
means for one person to show reasonable care for another. There dwells at
the center of tort law this enormously powerful enigma.
Other disciplines study care. Physiotherapists find care’s meaning in
the enabling and rehabilitative maximizing of their patients’ well being.1
Pharmacists see in care its empathy, support, compassion, protection, trust,
cooperation, and education.2 Recognizing care as one of the most
important, universal, and yet least understood forms of human expression,3
*
1.
2.
3.
Nelson P. Miller is an assistant dean and associate professor at Thomas M. Cooley
Law School, who has practiced and written about tort law since his graduation from
the University of Michigan Law School in 1987.
Mick Skelly, The Definition of Care, PHYSIOTHERAPY FRONTLINE, Oct. 2, 1996, at 2.
See Kimberly A. Galt, The Need to Define “Care” in Pharmaceutical Care: An
Examination Across Research, Practice and Education, 64 AM. J. PHARMACEUTICAL
EDUC. 223, 223-25 (2000).
See Madeline Leininger, Foreword to JEAN WATSON, NURSING: THE PHILOSOPHY AND
SCIENCE OF CARING, at xi-xii (1979) (“It is time that we study the implicit and explicit
meanings associated with the concepts of care and caring so that we can reduce their
ambiguities.”); see also Merren Stockdale & Philip J. Warelow, Is the Complexity of
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nurses define care as an interpersonal activity satisfying human needs,
promoting growth and health, and preserving self-determination, especially
for those who are weakened or suffering.4 Even in the face of modern
procedural demands and specialization, nurses still see the value of
structuring their profession around sensitive, altruistic value systems,
which instill hope through supportive relationships based on problem
solving and education, and are grounded on the universals of kindness,
concern, and love for others.5 Some professions, at least, still understand
the value of giving attention and definition to care as the core enlivening
value.
So why not lawyers? There is precious little written by tort law
commentators or even in the broader legal field about the attributes of care.
Some have made brief attempts to describe a few characteristics of the
reasonably prudent person. Half a century ago, Fleming James listed
judgment, knowledge and experience, perception of risk, skill, and sanity
as the reasonable man’s common attributes.6 The Restatement (Second) of
Torts includes “qualities of attention, knowledge, intelligence, and
judgment”7 among care’s attributes. More recently, treatise writer Dan B.
Dobbs noted the reasonably prudent person’s intelligence, perception,
memory, and knowledge.8 And commentator Heidi Li Feldman sees in the
standard of care the virtues of reasonableness, prudence, and carefulness.9
But right where much of our tort law study might have been profitably
focused on these and the many other attributes of care, a clear, definite
study of care itself seems oddly lacking in our legal writings.
As a result, juries (for instance) have little guidance on what
constitutes care,10 despite that “most pattern jury instructions . . . [use] both
4.
5.
6.
7.
8.
9.
10.
Care a Paradox?, 31 J. ADVANCED NURSING 1258, 1258-60, 1263 (2000) (explaining
that care is essential to human survival and a worthwhile ideal for nursing but not
adequately defined by the profession). Watson’s 1979 exposition of ten “carative
factors” is today recognized as the dominant model in nursing. Galt, supra note 2, at
223, 225.
JEAN WATSON, NURSING: THE PHILOSOPHY AND SCIENCE OF CARING 8-9 (1979).
Id. at 8-10.
Fleming James, Jr., The Qualities of the Reasonable Man in Negligence Cases, 16
MO. L. REV. 1 passim (1951).
RESTATEMENT (SECOND) OF TORTS § 283 cmt. b (1965).
DAN B. DOBBS, THE LAW OF TORTS § 118 (2000).
Heidi Li Feldman, Prudence, Benevolence, and Negligence: Virtue Ethics and Tort
Law, 74 CHI.-KENT L. REV. 1431 (2000), cited in Patrick J. Kelley & Laurel A.
Wendt, What Judges Tell Juries About Negligence: A Review of Pattern Jury
Instructions, 77 CHI.-KENT L. REV. 587, 592 (2002).
See Kelley & Wendt, supra note 9, at 587 (arguing that jury instructions on the
negligence standard are “murky, at best”). “The meaning of the basic ordinary
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the concept[s] of ordinary care and . . . of a reasonably careful person.”11
Commentators have recognized that “[e]ach of the recurring critically
important phrases in these pattern [jury] instructions, ordinary care and the
conduct of a reasonably prudent or a reasonably careful person, seem to
refer to a preexisting standard.”12 But even those linguists and social
scientists who have proposed revising pattern jury instructions on
negligence have not done so to further define care. Rather they have
attempted only to simplify the usual negligence language,13 leaving
commentators searching for a descriptive theory.14 Worse, we label the
reasonably prudent person “odious” and “unsalvageable,”15 and fashionably
denigrate terms like “justice” and “care” as if they were little more than
empty vessels. We continue to offer the standard of reasonable care to our
clients and juries without understanding it ourselves, and perhaps not even
believing in it.
One would think that a study of care would be an integral part of the
education of tort law students, as well as the working knowledge of
practicing civil litigators and judges. When we see care exercised in the
hands of a fine surgeon treating an accident victim, a skilled pilot landing
in a storm, a well-versed engineer designing a foundation, or an attendant
nursing an elderly patient back to health, we ought to want to know more
about this care that is the foundation of tort law. At the very least, one
would think that we would have a better understanding of care’s antithesis,
carelessness, given that our tort law jurisprudence rests primarily, if not
wholly, on that very premise of fault in the wrongdoer. We should know
more of what carelessness looks like, if not in its everyday expression
(about which our cases and casebooks unintentionally show us much) but
in its common characteristics. What is the face of carelessness so as to
recognize, judge, and condemn it? To know the attributes of carelessness
must indeed have tremendous value to the student and practitioner of tort
11.
12.
13.
14.
15.
reasonable person standard is not immediately evident.” Id. at 590.
Id. at 595.
Id. at 620 (emphasis omitted).
Id. at 613-14 (citing Robert P. Charrow & Veda R. Charrow, Making Legal Language
Understandable: A Psycholinguistic Study of Jury Instructions, 79 COLUM. L. REV.
1306 (1979); AMIRAM ELWORK ET AL., MAKING JURY INSTRUCTIONS
UNDERSTANDABLE (1982); Amiram Elwork et al., Toward Understandable Jury
Instructions, in IN THE JURY BOX: CONTROVERSIES IN THE COURTROOM 161, 176
(Lawrence S. Wrightsman et al. eds., 1987)).
See Kelley & Wendt, supra note 9, at 617-18.
See, e.g., Osborne M. Reynolds, Jr., The Reasonable Man of Negligence Law: A
Health Report on the “Odious Creature,” 23 OKLA. L. REV. 410 (1970); Anita
Bernstein, Treating Sexual Harassment with Respect, 111 HARV. L. REV. 445, 453
(1997) (arguing that the reasonable care standard “cannot be salvaged”).
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law, for such is the lifeblood of competent legal service in the broad tort
law field, including wrongful death, personal injury, property damage, and
even fraud and defamation. If we knew the common and essential attributes
of carelessness, we might better counsel our clients, advocate their cases,
teach our law students, and decide our tort cases. We ought to have made a
better study of that care which lends order to our private relationships and,
moreover, that carelessness which undergirds our tort law.
Odd indeed is the absence of an understanding and veneration of care,
because care is tort law’s essential organizing principle. Do not think that
this author is ignorant of the historical and philosophical debates and trends
that have led to this ignorance and even denigration of care. Surely for a
time, the Social Darwinism of Wigmore and Holmes and, more recently,
the positivism of Posner have hidden from us the intrinsic goodness of
care—hidden from us even the indispensable role care plays in our tort law
as it contributes to the ordered liberty of our society.16 It is admittedly
fashionable to label universals like care, justice, and equity as “spurious”17
rather than to harness their power by exploring, understanding, and being
guided by their attributes. But at least some continue to understand the
great philosophies and religions on the nature, role, and inescapable value
of care.18 It is certainly our obligation and opportunity in the law to do
likewise. Care needs no savior, because it takes the measure of us and our
age more than we take its measure. The extent to which our tort laws
recognize, appreciate, invoke, and promote care will be the measure of this
generation, as it has been the measure of any generation. This writing is not
in other words a polemic or plea. It only seeks for its writer and readers to
do that which ought to be done in all societies and circumstances: to turn
our attention to the sweet dictates and liberties of care, that doing so might
restore and benefit every one of us.
Tort law, however, deals with the practical. It comes into play only
16.
17.
18.
See, e.g., George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV.
537, 539-40 (1972) (“ubiquitously held” “beliefs about tort history . . . are all false or
at best superficial”); 10 BERNARD S. JACKSON, STUDIES IN JUDAISM IN LATE
ANTIQUITY: ESSAYS IN JEWISH AND COMPARATIVE LEGAL HISTORY 8 (Jacob Neusner
ed., 1975) (“A combination of nineteenth century evolutionism and twentieth century
pragmatism produces an attitude which views the ancient texts as manifestations of
primitive or archaic minds, and therefore of no contemporary interest.”).
See, e.g., John Mikhail, Law, Science, and Morality: A Review of Richard Posner’s
The Problematics of Moral and Legal Theory, 54 STAN. L. REV. 1057, 1086-87
(2002).
See MORTIMER D. SCHWARTZ ET AL., PROBLEMS IN LEGAL ETHICS 17-19 (5th ed. 2001)
(citing H.T.D. ROST, THE GOLDEN RULE: A UNIVERSAL ETHIC 28, 39, 43, 49, 103, 114
(1986); BENJAMIN CAMFIELD, THE COMPREHENSIVE RULE OF RIGHTEOUSNESS: DO AS
YOU WOULD BE DONE BY 54-55 (1679)).
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when a real injury has occurred under real circumstances. Perhaps the
practical nature of tort law is why there may be only a relatively small
number of scholarly journals devoted to its discussion.19 Tort law’s
practical, discrete, and concrete nature makes it a difficult subject to cover
in broad strokes and terms, for its breadth must cover the sum total of
human social activity. In every instance in which a person takes an action
having some consequence for another—whether it be the design of a
product, the manufacture of a drug, or the swing of a bat in a crowded
baseball stadium—tort law’s duty of care lies latent, waiting only for an
injury. Think for a moment of the ancient negligence liability provisions
having to do with the construction and navigation of a boat,20 the
construction and maintenance of a home or wall,21 the ownership and
maintenance of open lands,22 and the ownership and control of an ox.23
Those categories probably included the primary social and economic
activities of that ancient day, out of which personal injury could be
expected to arise. Yet the universal historical imperative that we voluntarily
act toward one another in care—with peace, proportion, self-control,
kindness, patience, and understanding, among other things—required then,
and still requires today, that there be a remedy for a careless wrong. Today
the activities would be somewhat different. Driving and industrial
employment come readily to mind as the modern activities most likely to
cause harm. But the attributes of care and carelessness have probably
remained much the same, even as there has been great change in
19.
20.
21.
22.
23.
Examples include the American Bar Association’s Tort Trial and Insurance Practice
Section’s Tort & Insurance Law Journal and the Australian Torts Law Journal.
See, e.g., REUVEN YARON, THE LAWS OF ESHNUNNA 47 (2d rev. ed. 1988) (“If a
boatman was negligent and caused the boat to sink—whatever he caused to sink, he
shall pay in full.” (quoting Laws of Eshnunna, 18th century B.C.)).
See, e.g., Reuven Yaron, The Goring Ox in Near Eastern Laws, in JEWISH LAW IN
ANCIENT AND MODERN ISRAEL: SELECTED ESSAYS 50, 56 (Haim H. Cohn ed., 1971)
(“If a wall was threatening to fall and the ward [authorities] have had [it] made known
to the owner of the wall, but he did not strengthen his wall and the wall fell down and
caused a son of a man to die, [it is a case concerning] life: decree of the king.”
(quoting Laws of Eshnunna, 18th century B.C.)).
See, e.g., J. Weingreen, Concepts in Ancient Biblical Civil and Criminal Law, 14
IRISH JURIST 113, 133 (1989) (“When a man leaves a pit (a cistern or a well)
uncovered, or when he digs one but does not cover it, should an ox fall into it (and
die), then the owner of the pit (well, or cistern) shall make good the loss.” (quoting
Exodus 21:33-34)).
See, e.g., J.J. Finkelstein, The Ox that Gored, in 71 TRANSACTIONS OF THE AMERICAN
PHILOSOPHICAL SOCIETY pt. 2, at 20 (1981) (“[I]f the ox was previously reputed to
have had the propensity to gore, and its owner had not kept it under control, he shall
make good ox for ox, but will keep the dead one for himself.” (quoting Exodus
21:36)).
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humankind’s social activities.
The attributes of care and carelessness not only inform but also can to
some degree organize our understanding of tort law. Those attributes are in
essence what any tort law text teaches, judge judges, and practitioner
practices, although only implicitly. Tort law tends to be conceived of as a
disjointed body of rules without organizing principles, when to the contrary
it has within care a clear organizing principle inadequately expressed and
studied. It is obvious that manufacturing, publishing, professional service,
and other forms of human social conduct, taken in part or as enterprises,
generate products liability, defamation, professional malpractice, vicarious
liability, and other tort law rules and doctrines. But the fact that they do so
because of the latent dictates of care is little understood or acknowledged.
This Article begins then with two summary tables. The first table lists
side-by-side the attributes of care and carelessness, first in their
commonality, then in their distinction. The second table groups various tort
law doctrines under the attributes of care and carelessness which those
doctrines most reflect. Part I of this Article elaborates upon and
individually explores those attributes of care. Part II explores the attributes
of carelessness, as they are reflected in those tort law doctrines. The reader
is encouraged to note at the outset that care and carelessness share many of
the same attributes. Our interest should lie not merely in where care and
carelessness depart from one another. We should just as well recognize the
common attributes of care and fault, if only to further highlight their
distinctions. Part III then shows how the attributes of care and carelessness
can be used in a practical manner, in a proposed negligence jury
instruction.
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Table I
ATTRIBUTES OF CARE
Willing or Volition
Perception or Intelligence
Effectiveness or Efficacy
Liberty
Impartiality
Humility or Condescension
Mercy or Leniency
Judgment or Justice
Truth or Authenticity
Unselfishness
Discipline or Self-Control
Reason or Rationality
Virtue
Compassion
Proportionality
ATTRIBUTES OF CARELESSNESS
SHARED
Willing or Volition
Perception or Intelligence
Effectiveness or Efficacy
Liberty
OPPOSING
Partiality or Prejudice
Pride
Vengeance
Arbitrariness or Injustice
Falsity or Disingenuousness
Selfishness
Indulgence or Intemperance
Irrationality
Opposition to Good
Cruelty
Disproportionality
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Table II
SHARED ATTRIBUTES OF CARE
AND CARELESSNESS
Willing or Volition
Perception or Intelligence
Effectiveness or Efficacy
Liberty
ASSOCIATED TORT LAW DOCTRINES
Intent as an element of assault, battery, and other
torts
Mistake negating intent as an element
Modified standard of care for children
Jury instructions to anticipate children’s conduct
Modified standard of care for physical disability
Act of God/unforeseen catastrophic events rules
Epilepsy, faints, and other physical reaction cases
Professional negligence/malpractice standard of
care
Learned intermediary doctrine
Sophisticated user rule
Incidental, one-time product seller rule
Special knowledge or expertise rules
Transferred intent doctrine
Deliberation required of fiduciary
Impossibility cases
Unavoidably unsafe products doctrine
State of the art defense
Impact and physical manifestation rules
“But for” and substantial factor causation tests
Apprehension as element of assault and
imprisonment
Remedial rather than injunctive or anticipatory
relief
Statutes of limitation
Statutes of repose
Notice of claim statutes
Notice of intent statutes
Open and obvious hazard doctrine
Assumption of the risk defense
Unavoidably unsafe products doctrine
Unavoidable accident jury instructions
Proximate cause rules
No extraordinary precaution jury instructions
Self-defense and defense of others
Privileges to enter the land of another
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ATTRIBUTES OF CARE
Humility or Condescension
Mercy or Leniency
Judgment or Justice
Truth or Authenticity
Compassion
Impartiality
Unselfishness or Self-Control
Proportionality
803
ASSOCIATED TORT LAW DOCTRINES
Higher duty of care to the young, old, and disabled
Res ipsa loquitor for the comatose or unknowing
Liability to unborn children rules
Eggshell skull rule
Incremental harm defamation doctrine
Significant minority defamation rule
Private, voluntary waiver of claims
Private, voluntary settlement and release of claims
Duty or immunity waiver based on available
insurance
Private and public necessity as defense
Judgment and satisfaction of judgment
Single, full, and partial satisfaction rules
Contribution and indemnity rules
Sudden emergency and rescue doctrines
Permissive use of force in discipline and
confinement
Objective standards of care
Informed consent malpractice rules
Make whole remedy doctrine
All provable damages rules
Loss of consortium recovery
Collateral source rule
Vicarious liability rules
Contributory
and
comparative
negligence
doctrines
Common law indemnity
Others-will-act-properly jury instructions
Immunity based on relationship rather than person
Fiduciary duties against self-interest and selfseeking
Manifestation of consent
Allocation of fault and apportionment of damages
rules
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ATTRIBUTES OF
CARELESSNESS
Cruelty
Injustice
Falsehood
Partiality
Pride or Prejudice
Selfishness
Opposition to Good
Indulgence or Intemperance
Unreasonableness or Irrationality
Disproportion
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ASSOCIATED TORT LAW DOCTRINES
Waivers of family and governmental immunity
Continuing tort and constitutional tort doctrines
Malice as standard for punitive damages
Actual malice constitutional standard for
defamation
Risk/utility products liability tests
Strict liability for abnormally dangerous activities
Fraudulent and negligent misrepresentation claims
Breach of warranty liability
False imprisonment and conversion claims
Defamation and false light claims
Fraudulent misrepresentation claims
Conversion claims
Expert testimony and professional standards rules
Objective standards of care
Assault, trespass, and other intentional torts
Reckless, willful, and wanton misconduct
distinctions
Punitive damages
Intoxication and sexual harassment torts
Profits as a measure of punitive damages
Negligence, products, and premises liability
standards
Custom, regulations, and standards evidence
Professional malpractice and fiduciary duty
standards
Risk/utility products liability balancing tests
I. THE ATTRIBUTES OF CARE
Willing or Volition. The care which tort law requires of us must first
of all be voluntary or volitional. It would be nonsense to require something
of someone which is not within that person’s capability to choose or not
choose. The law does not operate upon automatons. It is not the wind that
the law governs; it is human intentions, and tort law is certainly no
exception. Thus, surely willing or volition (“voluntariness” might be an
unattractive legal word) is a cardinal attribute of tort law’s care. “There
cannot be an act without volition,” is the manner in which the paradigmatic
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Restatement (Second) of Torts puts it.24 One cannot be considered “careful”
without considering the quality of the choices one has made. To consider as
“careful” one who has no capacity to choose and so no will or volition,
simply because they happened to cause no injury, would be nonsense. Care
implies choosing. Choice, indeed, is the great tool of the litigator—whether
for plaintiff or defendant, depending on the facts. Choice often defines the
case like no other attribute. When defense counsel can legitimately ask,
“But what could my client have done?” and there is no answer suitable to
demonstrate the defendant’s lack of care, then there has been adequate care,
and there is no liability. When, by contrast, the plaintiff’s counsel can
demonstrate the reasonably careful, known alternative not chosen by the
defendant that would have prevented or substantially reduced the likelihood
of the plaintiff’s injury, then once again care has been demonstrated even
by its absence on the part of the defendant.
If volition is an attribute of care, then it should be expressed in tort
law rules and doctrines, and indeed it is. One thinks first of those cases
where volition might well be absent, as for instance, in the case of the
instinctive and unconsidered actions of a very young child. There one
correctly finds the absence of any duty of care—a very young child is
incapable of the lack of care or negligence.25 And so it should be for one
who is too young to form the will and exercise the volition to regard the
well-being of others. Although we are perhaps less willing to admit that the
same incapacity may return at the end of life, tort law reluctantly admits a
similar non-liability rule in some cases where the very aged and infirm may
also lack the capacity to act voluntarily, at least with respect to their own
safety.26 We find similar rules for non-liability in the absence of volition,
where injury has resulted from a lack of ordinary physical capacity such as
24.
25.
26.
RESTATEMENT (SECOND) OF TORTS § 2 cmt. a (1965).
See, e.g., Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682 (Iowa 1993)
(holding that a two-year-old child who started a house fire while playing with a
cigarette lighter was not capable of negligence); Price v. Kitsap Transit, 886 P.2d 556
(Wash. 1994) (holding that a four-year-old child who engaged a bus emergency brake
was not capable of fault and was not an “entity” to which fault could be apportioned).
See, e.g., Kitsap County Transp. Co. v. Harvey, 15 F.2d 166 (9th Cir. 1926) (holding
that a carrier failed to exercise the requisite duty of care owed to an elderly woman in
maintaining seats in a steamship cabin ten inches above the aisle); LaCava v. New
Orleans, 159 So. 2d 362 (La. Ct. App. 1964) (holding that a seventy-year-old man
who tripped on a sidewalk was contributorily negligent); Johnson v. St. Paul City Ry.
Co., 69 N.W. 900 (Minn. 1897) (holding that the decision not to submit to the jury the
issue of whether or not a seventy-five-year-old woman was contributorily negligent
was not in error); Tobia v. Cooper Hosp. Univ. Med. Ctr., 643 A.2d 1 (N.J. 1994)
(holding that a healthcare provider could not raise the issue of contributory negligence
in a case involving an elderly patient’s self-inflicted injury).
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blindness,27 deafness,28 and paralysis.29 The “act of God” cases, excusing
liability for unforeseen harm relating to catastrophic natural events,30 may
well fall under the same attribute of care that the party’s conduct must
above all be volitional. Even involuntary intoxication,31 epileptic seizures,32
and other similarly unwilling physical reactions33 are excused in the
absence of volition, at least where anticipatory precautions need not have
been taken. The insanity cases34 are problematic in tort law precisely
because care ordinarily requires such volition. We do not require care from
one who cannot exercise it, because the care we expect of one another has
volition as its first attribute.
Perception or Intelligence. Care certainly implies intelligence
sufficient to perceive the needs of and risks to one another attendant on our
various social activities. Care implies not only the will or volition
27.
28.
29.
30.
31.
32.
33.
Roberts v. State, 396 So. 2d 566 (La. Ct. App. 1981) (holding that a blind man, who
was familiar with his surroundings, was not negligent in going to the restroom
without his cane).
Otterbeck v. Lamb, 456 P.2d 855 (Nev. 1969) (holding that a bus driver owed a duty
of care to a deaf passenger).
Hodges v. Jewel Cos., 390 N.E.2d 930 (Ill. App. Ct. 1979) (holding that entranceways
to public buildings must be considered from the standpoint of the handicapped as well
as from the standpoint of the able-bodied).
See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM § 3 cmt. l (Tentative
Draft No. 1, 2001) (act of God is an affirmative defense); see, e.g., Ark. Valley Elec.
Coop. Corp. v. Davis, 800 S.W.2d 420, 423 (Ark. 1990) (“A person is not liable to
another whose damages were caused solely by an act of God.”).
See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM § 12 cmt. c.
(Tentative Draft No. 1, 2001) (noting involuntary intoxication may excuse tortious
conduct); cf. Janelsins v. Button, 648 A.2d 1039 (Md. Ct. Spec. App. 1994) (holding
voluntary intoxication no excuse to civil battery).
See Moore v. Capital Transit Co., 226 F.2d 57 (D.C. Cir. 1955), cert. denied, 350
U.S. 966 (1956); Storjohn v. Fay, 519 N.W.2d 521 (Neb. 1994).
See, e.g., House v. Kellerman, 519 S.W.2d 380, 383 (Ky. Ct. App. 1974) (reflex
action of one suddenly awakened); Ballew v. Aiello, 422 S.W.2d 396, 399 (Mo. Ct.
App. 1967) (partially unconscious, non-volitional act of grabbing steering wheel); see
also RESTATEMENT (FIRST) OF TORTS § 14 cmt. a (1934):
[A] muscular movement which is purely reflexive or the convulsive
movements of an epileptic, are not acts in the sense in which that word
is used in the Restatement. So too, movements of the body during sleep
or while the will is otherwise in abeyance are not acts. An external
manifestation of the will is necessary to constitute an act and an act is
necessary to make one liable . . . .
34.
Id.
See, e.g., McGuire v. Almy, 8 N.E.2d 760 (Mass. 1937) (holding that an insane
person is liable for intentional harm).
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connected with choosing, but also the knowledge or perception of what is
chosen. One can choose to act in a certain fashion without yet knowing the
nature or extent of the risks so faced in choosing. People often do
undertake to act while unaware of the risks they are creating. Intelligence
and perception are necessary attributes of care, for the responsibility of care
cannot arise without first some knowledge of the circumstances. It is in this
respect inescapable (if anyone could honestly wish to escape it) that care
has an aspect of virtue. It is not mere intelligence sufficient to perceive the
risks which care requires of us. It is moreover a desire to conform one’s
conduct so as to attempt to minimize or eliminate those risks—that which
we ought to frankly call virtue. After one understands the risks, the
conscience ought then to encourage one in the pursuit of risk-reducing
conduct. Care requires that the rightness or fitness of so conforming one’s
conduct be understood in the conscience. It is a particular kind of
intelligence which care requires of us: that of the appreciation of the risk of
our conduct toward ourselves and one another. Intelligence in the law of
torts exists not for the purpose of self-expression but to promote the wellbeing of ourselves and one another. The intelligence of care does not author
a brilliant treatise, craft a profound poem, or interpret an esoteric melody,
purely for the display of that intelligence. Rather it regards the pursuit of
orderly well-being as the inherent good and so acts accordingly. The result
may indeed be a brilliant treatise, profound poem, or interpreted melody,
but its purpose would be to promote well-being, not to express intelligence
itself at the hazard of its author or of another. Nietzsche was intelligent yet
died absurdly insane and likely caused others much grief in expressing such
a distorted and hazardous brilliance.35 Jonas Salk employed intelligence to
quite different ends, as indeed did the artist Michelangelo and the author
Solzhenitsyn.36 But all brilliance aside, an ordinary understanding or
perception is quite clearly a cardinal aspect of care, for without at least
some rudimentary knowledge of the risks we face and create, we would
certainly all perish.
And so is care’s intelligence found to be a doctrinal consideration and
rule-maker throughout tort law. Over and over again in tort law, the duty
imposed depends on the knowledge and sophistication expected of the
actors. In healing others, hospital interns are expected to exercise a
physician’s skill, knowledge, and training—not those of a just-graduated
35.
36.
See RUDIGER SAFRANSKI, NIETZSCHE: A PHILOSOPHICAL BIOGRAPHY 370-71 (Shelley
Frisch trans., 2002) (describing Nietzsche’s ultimate demise).
See RICHARD CARTER, BREAKTHROUGH: THE SAGA OF JONAS SALK 1-7 (1966)
(describing Salk’s “saintly” brilliance); GEORGE BULL, MICHELANGELO: A BIOGRAPHY
3-4 (1995) (noting Michelangelo’s successes); see also generally D.M. THOMAS,
ALEXANDER SOLZHENITSYN: A CENTURY IN HIS LIFE (1998).
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medical student.37 In transporting others, pilots are required to exercise the
skill, knowledge, and training of reasonably prudent pilots, not of just
anyone who may happen to fly an airplane.38 In providing products for
others, manufacturers and sellers are held to a manufacturer’s standard, so
long as they are in the relevant business.39 It is common tort law doctrine
that the knowledge of learned intermediaries and sophisticated users can
cut off a manufacturer’s liability for a defective product.40
Tort law even excuses the ignorance of those who only incidentally
sell a defective product.41 Section 289(a) of the Restatement (Second) of
Torts generalizes our consideration of the actor’s knowledge with the
admonition that we must exercise “such attention, perception of the
circumstances, memory, knowledge of other pertinent matters, intelligence,
and judgment as a reasonable man would have . . . .”42 Indeed Section
289(b) of the Restatement (Second) of Torts states that where the
reasonable person who possesses them would exercise knowledge or skills
beyond the knowledge or skills held by the rest of us, then care requires
that the person do so.43 In making such determinations, jurors are to
consider the foreseeability of the untoward consequences of human
conduct.44 Similarly, process and deliberation are key aspects of the
37.
38.
39.
40.
41.
42.
43.
44.
Centman v. Cobb, 581 N.E.2d 1286, 1288 (Ind. Ct. App. 1991) (“[A]n intern is a
practitioner of medicine required to exercise the same standard of skill as a physician
with an unlimited license to practice medicine.”).
See, e.g., Heath v. Swift Wings, Inc., 252 S.E.2d 526, 529 (N.C. Ct. App. 1979)
(rejecting a subjective standard in favor of an objective standard of care in cases
involving professionals requiring specialized skills).
See RESTATEMENT (SECOND) OF TORTS § 402A (1965); RESTATEMENT (THIRD) OF
TORTS: PRODUCTS LIAB. § 1 cmt. c, n.1 (1998) (“American courts universally hold
that only sellers who are in the business of selling products are strictly liable.”).
See, e.g., Smith v. Walter C. Best, Inc., 927 F.2d 736, 741-42 (3d Cir. 1990) (holding
that the commercial sale of a product to a company knowledgeable of the risks cuts
off company employee’s right to sue for failure to warn); Lacy v. G.D. Searle & Co.,
567 A.2d 398 (Del. 1989) (holding that a physician had acted as learned intermediary
with respect to patient warnings regarding IUD).
See, e.g., Tauber-Arons Auctioneer Co. v. Superior Court, 161 Cal. Rptr. 789, 794-95
(Cal. Ct. App. 1980) (holding that an auctioneer was not strictly liable for one-time
sale of defective used product); see also RESTATEMENT (THIRD) OF TORTS: PRODUCTS
LIAB. § 8 (1998) (limiting liability of commercial seller of used product).
RESTATEMENT (SECOND) OF TORTS § 289(a) (1965).
Id. § 289(b) (“[S]uch superior attention, perception, memory, knowledge,
intelligence, and judgment as the actor himself has.”); see also RESTATEMENT (THIRD)
OF TORTS: LIAB. FOR PHYSICAL HARM § 12 (Tentative Draft No. 1, 2001) (“If an actor
has skills or knowledge that exceed those possessed by most others, these skills or
knowledge are circumstances to be taken into account . . . .”).
See RESTATEMENT (SECOND) OF TORTS § 388 (1965) (“knows or has reason to know
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fiduciary’s duty of care to arrive at a properly considered and intelligent
decision.45 In so many respects knowledge and perception are key
considerations in fashioning tort law rules, because they are such necessary
corollaries to the care which underpins tort law.
Effectiveness or Efficacy. To care though, knowledge and intention
are not enough. The road to hell (after all) is paved with such intention. To
be properly careful, one must intend that which can be accomplished—that
is, to choose that which one has the capacity to perform so as to bring about
the intended result. Care most certainly implies effectiveness or efficacy as
a necessary attribute or characteristic. Care without effectiveness would be
sentimentality or indeed (still worse) hypocrisy. It is perhaps the equivalent
of the misunderstood distinction between sympathy and compassion—the
former wholly ineffective but the latter entirely useful in bringing about a
remedy. To put it another way, care must produce action of the sort that
will make a difference, or it is not care. It is somewhat like the parent who
repeatedly tells the child that the parent loves the child—but never does
more to feed and clothe it. Such inaction would not be love, for love is
something expressed not by words (in such a situation of need) but by
action. Nor is it care to have the will, knowledge, and intention to avoid
harm, but not to choose means to do so.
Effectiveness or efficacy as an aspect of care is indeed found in tort
laws and doctrines, wherever the odd and various social activities of
humans would require it. Foremost, tort law does not require the impossible
from us.46 Efficacy, capacity, and capability are the most basic measures of
tort law. Rudimentarily, the one whose conduct is under consideration is
judged by the physical characteristics (as, for instance, short stature47)
which that one—and that one only—possesses. To judge a person based on
other than those physical capacities the person possesses—to require that
they run faster or jump higher so as to avoid harm—would deny care any
true efficacy. Similarly, tort doctrine excuses injury due to unavoidably
45.
46.
47.
that the chattel is . . . dangerous”).
See, e.g., Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985) (holding that a
corporate director has a duty, arising from the fiduciary capacity, to inform himself
prior to making business decisions).
See, e.g., Parlato v. Equitable Life Assurance Soc’y, 749 N.Y.S.2d 216, 223 (N.Y.
App. Div. 2002) leave denied, 787 N.E.2d 1164 (N.Y. 2003) (quoting Matter of Sloat
v. Board of Examiners, 9 N.E.2d 12, 15 (N.Y. 1937)) (“The law, of course, ‘does not
require the impossible.’”).
Mahan v. State, 191 A. 575 (Md. 1937) (noting a defendant’s peculiar inability to see
over vehicle’s hood due to short stature); see also cases on blindness and deafness,
supra notes 27-28; DOBBS, supra note 8, § 118 (noting that as to physical
characteristics, the reasonably prudent person adopts those of the person whose
conduct is at issue).
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unsafe (but yet for other reasons warranted) medical drugs and devices,48
just as it excuses liability for products judged defective only by a state of
the art which did not exist at the time of manufacture.49 To judge a product
by that characteristic which it unavoidably possesses, or to require a
product to employ technology which did not then exist, would ruin care’s
effectiveness. More succinctly, it would be foolishness for the lay person to
presume to perform brain surgery to save a life, and so tort law would
never require it. But tort law most certainly requires brain surgery within
the standard of care when performed by a trained brain surgeon.50 Indeed,
care requires that one who holds oneself out as a specialist possess and
exercise the skill, knowledge, and training of a specialist, even if the skill,
knowledge, and training is thoroughly absent.51 The standard of care is
certainly not satisfied by the claim that one is (or wishes to be) a healer. An
appreciation of the risks and a desire to overcome those risks means little or
nothing to tort law, in the absence of the efficacy to accomplish the desire.
Efficacy as a necessary component of care is found right where one would
expect to find it in tort law.
Humility or Condescension. To say that care has an aspect of humility
will sound strange to the legal ear, perhaps because the postmodern
materialist mind thinks so little of virtue. Yet it remains inescapable that
care also includes that attribute which causes and indeed requires us to
condescend to those who might be judged by some to be beneath us. Care
reaches down. It encourages those with power and means to give regard
(and not merely some regard but equal regard) to those who are without
either. Care does not prefer the rich and powerful. To care, all who exist
have value—care itself being the intrinsic value. To prefer, to prejudge, or
to exhibit a prejudice or bias based on the wealth, status, or
accomplishment that the world values, would demonstrate an absence of
care; for care is submissive, plain, and unpretentious.
If care is humble, then we should find such humility in tort law. And
indeed we do, just as tort law protects the young, weak, and elderly. It is
“‘[t]he crowning glory of courts . . . to protect the weak and ignorant from
48.
49.
50.
51.
RESTATEMENT (SECOND) OF TORTS § 402A cmt. k (1965).
See, e.g., Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204, 210 (N.Y. 1983)
(holding that “the state of the art at the time of production is the issue”); see also
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIAB. § 2 cmt. d (1998) (noting that
evidence that the product design “was the safest at the time of sale” is generally
admissible).
See, e.g., RESTATEMENT (SECOND) OF TORTS § 299A (1965).
See, e.g., Aves v. Shah, 997 F.2d 762, 765 (10th Cir. 1993) (finding a physician held
herself out as an obstetric specialist); Duffey Law Office v. Tank Transport, Inc., 535
N.W.2d 91, 96 (Wis. Ct. App. 1995) (holding to a higher specialist’s standard an
attorney who held himself out as a labor law specialist).
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imposition by the strong and intelligent,’”52 or so it used to be. Where
necessary under the circumstances, tort law holds us to a higher duty to the
young and elderly.53 Tort law protects the unconscious during surgery.54 It
protects the seaman who falls overboard by his own neglect.55 It protects
the unborn child.56 Tort law so reflects care’s condescension that it does not
matter whether the low status of the injured party was patent before the
injury. Its eggshell skull rule even protects those who have hidden
susceptibility to harm.57 Similarly, defamation’s incremental harm doctrine
protects the reputation of even those who (it would seem) have none,58 and
its significant minority rule protects the reputation of those who have a
reputation only among those without one.59 One cannot be so low as not to
be degraded even further, or so tort law in its condescension accepts and
presumes. Defamation law further gives greater protection to those private
figures who, lacking media access, are unable to set the record straight so
52.
53.
54.
55.
56.
57.
58.
59.
Abercrombie v. Carpenter, 43 So. 746, 747 (Ala. 1907), quoted in Davidson v. Reed,
337 So. 2d 1288, 1290 (Ala. 1976).
See Woodall v. Castner-Knott Dry Goods Co., 673 So. 2d 769 (Ala. Ct. App. 1995)
(“[R]easonable care . . . may require greater precautions when children or the elderly
are present.” (quoting F.W. Woolworth v. Kirby, 302 So. 67, 71 (Ala. 1974)).
See Ybarra v. Spangard, 154 P.2d 687, 689 (Cal. 1944) (applying the doctrine of res
ipsa loquitor to hold a doctor liable for neck injuries sustained by a patient while
unconscious during surgery).
Harris v. Pennsylvania R.R. Co., 50 F.2d 866, 868 (4th Cir. 1931) (“[A] legal
obligation rests upon a ship to use due diligence to save one of the crew, who, by his
own neglect, falls into the sea.”).
Volk v. Baldazo, 651 P.2d 11, 12 (Idaho 1982) (involving a wrongful death claim for
unborn child); Vaillancourt v. Med. Ctr. Hosp., Inc., 425 A.2d 92, 93 (Vt. 1980)
(same).
RESTATEMENT (SECOND) OF TORTS § 435(1) (1965) (“If the actor’s conduct is a
substantial factor in bringing about harm to another, the fact that the actor neither
foresaw nor should have foreseen the extent of the harm or the manner in which it
occurred does not prevent him from being liable.”); see also Colonial Inn Motor
Lodge v. Gay, 680 N.E.2d 407, 416 (Ill. App. Ct. 1997) (holding that the fact that a
building rather than a person may have had an “eggshell skull” did not foreclose
liability).
Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 (D.C. Cir. 1984). In an opinion
authored by Justice Antonin Scalia before his appointment to the Supreme Court, the
Liberty Lobby court held that “[t]he law . . . proceeds upon the optimistic premise that
there is a little bit of good in all of us—or perhaps upon the pessimistic assumption
that no matter how bad someone is, he can always be worse.” Id.
See, e.g., Grant v. Reader’s Digest Ass’n, Inc., 151 F.2d 733, 734 (2d Cir. 1945) (“A
man may value his reputation even among those who do not embrace the prevailing
moral standards; and it would seem that the jury should be allowed to appraise how
far he should be indemnified for the disesteem of such persons.”).
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as to protect themselves.60 Care in its humility certainly condescends, and
tort law does as well.
Mercy or Leniency. Care must include some aspect of mercy or
leniency, at least when to offer it would serve to benefit both the wronged
and the wrongdoer. That is, care would not in every instance dictate
unrecompensed pardon. Nor would it in every case require full
compensation for satisfaction of judgment. The extent to which the injurycausing wrong ought to be met with injury-healing action (whether
judgment, settlement, compensation, retraction, apology, service, or other
relief or remedy) depends on the circumstances, actions, attitudes, and
well-being of the wronged and wrongdoer. Care of course attempts to avoid
injury. But when injury has occurred, care further dictates some action. Yet
it is not necessarily the full and swift compensation, deterrence, and even
retribution which many associate with tort law. Care may instead include a
good measure of mercy or leniency. Care includes this attribute of mercy,
of course, because care is owed not only to the wronged but also to the
wrongdoer. The good will that care requires of each of us is to be good,
even to the wrongdoer. The talionic punishment (“eye for an eye, tooth for
a tooth”) written (if not enforced) down through the ages stands as an
admonishment to care, not as its attribute.61 Care implies the best for all in
every situation, even where injury has already occurred. It does not absent
itself once injury occurs.
Tort law’s mercy or leniency, as an attribute of care, is probably best
reflected in a little-heralded, but quite significant, statistic that does not
appear in the case law. Study suggests that only about one in ten people
injured by another make any resort to the tort system.62 That means that
nine out of ten do not. That statistic suggests a very large degree of mercy.
But such is the very nature of tort law: when it does come into play it does
so only by the private action of a private party. There is no compulsion
about it, until a plaintiff decides to make it compulsive. This writer’s
experience suggests that plaintiffs’ reasons for suing are as various and
peculiar as the plaintiffs who do so. It is not always money, and it is not
always principle. It is not even always some combination of the two
considerations. Even when a plaintiff does sue, statistics show that nineteen
60.
61.
62.
See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) (holding that private
individuals are “more vulnerable to injury than public officials” and thus “more
deserving of recovery”).
See, e.g., Finkelstein, supra note 23, at 25 n.1.
DAN B. DOBBS & PAUL T. HAYDEN, TORTS AND COMPENSATION: PERSONAL
ACCOUNTABILITY AND SOCIAL RESPONSIBILITY FOR INJURY 808-09 (4th ed. 2001)
(citing Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV.
1093, 1103 n.28 (1996)).
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out of twenty tort cases settle voluntarily before trial, again saying volumes
about mercy. Indeed statistics suggest that in those great majority of tort
cases which settle before trial, the settlements may undercompensate the
injured on average (and to the extent such things can be measured) by one
quarter63—yet more mercy. For a moment setting aside the statistical
reliability of doing so, one might take together the two statistics above to
conclude that in only one out of 200 (one out of ten multiplied by one out
of twenty) instances of injury is a tort judgment imposed upon the
wrongdoer. Add to that inference the fact that the plaintiff prevails in not
even one half of jury-tried tort cases,64 and the conclusion appears to be
that judgment against the defendant is imposed in only one out of every
400 potential tort cases. That again is a vast quantity of mercy. Consider
also that tort law permits (and even some would say depends upon) the
payment of compensation not out of the wrongdoer’s pocket, but from
liability insurance. Tort law even occasionally imposes a duty depending in
part on the availability of insurance.65 This aspect of tort law permitting
one (the liability insurer) to stand in the shoes of the insured wrongdoer is
critical to care’s mercy, because mercy is not the mere avoidance of a
penalty. It is rather the restoration of the wrongdoer to good status and
account not only with the injured but with the community. And so it is that
tort law doctrines deal also with the release of the wrongdoer upon
payment of a negotiated settlement,66 effective even (depending on the
circumstances) as to subsequent death following the initial injury for which
there was negotiated compensation.67 Care’s mercy and leniency are simply
present throughout tort law.
Judgment or Justice. The natural balance to care’s mercy or leniency
is its judgment and justice. The natural mind does not think of justice as
being an aspect of care, to which the natural mind instead affords a sweet
sentimentality. But care is instead something quite strong and robust. Care
has the muscles that come with constant action on behalf especially of
those who are in need of protection. Justice is the term best used to describe
63.
64.
65.
66.
67.
Id. at 809 (citing BUREAU OF JUSTICE STATISTICS BULLETIN 1 (Sept. 1999); NATIONAL
SAFETY COUNCIL, INJURY FACTS 83 (1999)).
Id. (citing BUREAU OF JUSTICE STATISTICS BULLETIN 1 (Sept. 1999)).
See, e.g., Natrona County v. Blake, 81 P.3d 948, 951 (Wyo. 2003) (holding that
prevalence of insurance is one factor in determining whether duty is owed); Hurt v.
Freeland, 589 N.W.2d 551, 555 (N.D. 1999) (citing W. PAGE KEETON ET AL., PROSSER
AND KEETON ON THE LAW OF TORTS § 53, at 359 n.24 (5th ed. 1984)).
See, e.g., RESTATEMENT (SECOND) OF TORTS § 885 (1979) (“Effect of Release of or
Payment by or on Behalf of One of Several Tortfeasors”).
See, e.g., Varelis v. N.W. Mem. Hosp., 657 N.E.2d 997, 1004 (Ill. 1995) (holding that
decedent’s personal injury recovery during his lifetime precluded further recovery by
decedent’s personal representative).
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that action, at least once a careless injury has occurred and care must take
some action to see its restoration. Care’s justice is not retributive. It has
nothing to do with gratifying a vengeful, sensual desire to see penalty
exacted. Care’s justice is not based in feelings or in their satisfaction at all.
It is instead a rational and considered response to wrong. It is the
disposition to treat according to merited conduct. Justice itself has public
and private attributes, even when considered to be an aspect of care. Justice
as an aspect of care plays a role in restoring and preserving private order,
which in its aggregate quickly becomes public order. Justice as an attribute
of care is closely connected to remedy, for it is that aspect of care which
authorizes and requires remedy, before mercy can be extended and
wrongdoers pardoned.
And so it is that with judgment and justice giving to care its muscle,
tort law depends at its core (both conceptually and procedurally) on
judgment and satisfaction of judgment.68 Tort law carefully circumscribes
the parameters of judgment to a single satisfaction69 yet just as carefully
grants further recourse to those whose paper judgment is only partially
satisfied.70 Tort law requires in other words that judgment be real and
effectual. Cases and statutes modify and clarify the traditional release
rules71 in order that judgment is satisfied even when balanced against
mercy.72 Contribution, comparative negligence, allocation of fault, and
apportionment of damages rules and statutes carefully balance the equities
in judgment. Tort law at its core grants us the judgment of our peers as to
the nature and extent of the defendant’s wrong, the degree of responsibility
borne by the plaintiff, and the compensation due as a remedy. Although
historically and even today that judgment is for the most part avoided in its
strictest form, it nonetheless provides the foundation for the entire tort
system. Those who settle may well do so because of the impending
68.
69.
70.
71.
72.
See, e.g., RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIAB. § 25 (2000)
(“Satisfaction of Claim Through Discharge of Judgment”).
See In re Miamisburg Train Derailment Litig., 725 N.E.2d 738, 746 (Ohio Ct. App.
1999) (applying common law single satisfaction rule).
See RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIAB. § 26 (2000).
See, e.g., Abb v. N. Pac. R.R. Co., 68 P. 954 (Wash. 1902) (holding that release of
one releases all).
Compare Maryland Cas. Co. v. Delzer, 283 N.W.2d 244, 248 (S.D. 1979) (finding
release governed by parties’ intent), with UTAH CODE ANN. § 78-27-42 (2002) (“A
release given by a person seeking recovery to one or more defendants does not
discharge any other defendant unless the release so provides.”), with In re Tutorship
of Witt, 747 So. 2d 1142, 1150 (La. Ct. App. 1999) (holding that release of one is
discharge of all unless there is an express reservation of rights), with Estate of
Williams v. Vandeberg, 620 N.W.2d 187, 191 (S.D. 2000) (finding release of agent is
release of principal notwithstanding express reservation of rights).
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judgment. Those who forego making a claim may well do so just as well
because of the opportunity for judgment should they choose to pursue it.
Whether or not a plaintiff or defendant, or even a non-suing party, values
judgment sufficiently to obtain it through the voice of the tort law jury, the
potential for that judgment lends meaning to the entire tort system.
Judgment as an aspect of care is not necessary in every case, nor is it
necessarily warranted in a majority or even a substantial percentage of
cases. But it still lends purpose and mission to care, even if it occurs in so
few as a hundredth of cases.
Truth or Authenticity. If truth is the reality or authenticity of affairs
and circumstances, then care certainly has the character of truth all about it.
The great truth of care lies in its disposition to require each of us to
recognize the existence of others. So is the peculiarity of consciousness.
Certainly it is true that as one knows consciousness and existence, one must
equally grant consciousness and existence to others. The real or authentic
state of affairs is that we share existence. Care admits no narcissistic
existence, because such uncaring selfishness is based on a false impression
or imagination of the universe of being. Care requires us to conform our
will to the reality that others have an equal value in existence. Care
confronts us with the truth of others, requiring and disposing us to give
others their due consideration. Care requires that we recognize the external
and (in a sense) the eternal—that the truth of conscious being has existed
and will continue to exist beyond our own consciousness and
comprehension.
Tort law thus naturally reflects care’s truth both at its roots and in its
doctrinal expression. At its roots, tort law conceives of its basic duty of
care as a rule of reason or rationality, defined not by what any one actor
subjectively believes (whether it be true or false), but rather, by an
objective determination based on external considerations73—that is, by an
external truth rather than an internal speculation. In that respect, tort law is
quite true to truth—quite dependent on truth as an aspect of care. Tort law
in the most fundamental of senses enforces truth (the most fundamental of
truths) between private actors, that they have an equal claim to existence.
But beyond that, tort law enforces particular truth between particular
actors. It creates liability for false imprisonment 74 and defamation.75 It
recognizes causes of action for false light invasion of privacy,76 and
73.
74.
75.
76.
See, e.g., RESTATEMENT (SECOND) OF TORTS § 283 (1965) (“Conduct of a Reasonable
Man: The Standard”).
See id. § 35.
See id. § 558.
See id. § 652E.
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fraudulent misrepresentation.77 It requires informed rather than uninformed
consent to medical treatment.78 Wherever and whenever individuals speak,
write, and represent to one another in contexts material to their health and
finances, tort law is there, prepared to remedy the harm that may flow from
untrue statements or manipulated circumstances and transactions. Indeed,
tort law does not recognize a misrepresentation cause of action for
falsehoods that are neither material nor actually believed and relied upon79
because tort law itself must be real and authentic rather than imagined or
disingenuous. Truth as an attribute of care is a fundamental source of tort
law rules and doctrines.
Compassion. Care naturally has a large degree of compassion about it.
Compassion is the consciousness of another’s loss or harm together with an
active desire to do what is appropriate and possible to avoid or relieve it.80
Compassion is not merely a feeling of sympathy or pity. It may begin with
the same disquieted feeling that leads some to sympathy, or it may lack that
disquieted feeling entirely and lie instead solely in the comprehension of
the senses that another suffers or may suffer followed by a willing that it
not be so—a marriage of the heart and mind leading to action. Unlike
sympathy or pity, compassion carries with it the will to action so as to
prevent or relieve the suffering that it anticipates or witnesses. Indeed, one
can be sympathetic or pitying while at the same time being the cause of the
unnecessary and inappropriate loss or harm that evinces it. Villains, even
negligent ones, probably often do pity their victims and feel some measure
of sympathy. The Levite and the priest surely felt sympathy for the injured
one whom they walked past.81 But one cannot be compassionate while
deliberately causing unnecessary or inappropriate harm, or unnecessarily
allowing it to continue. Compassion would lead to a willing that the harm
not occur or that, once having occurred, it be promptly remedied so far as
possible. Thus care must be endowed with a heart of compassion, for care
is itself that watchful regard for the well-being of another.
Does tort law reflect compassion as an attribute of its care? Of course
the preventive and deterrent roles of tort law speak of its compassion to
those who would otherwise have been injured. The refinements in our
vehicles, highways, products, and medical services which have been
influenced by the responsibility required by the tort system have no doubt
77.
78.
79.
80.
81.
See id. § 541.
See, e.g., Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972).
See RESTATEMENT (SECOND) OF TORTS § 538 (1977).
See WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 268 (1987) (defining
compassion as “consciousness of others’ distress together with a desire to alleviate
it”).
Luke 10:30-37 (the parable of the Good Samaritan).
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saved thousands from death or injury. But moreover, at its root tort law
conceives of itself as providing a “make whole” remedy to one who is
harmed by another’s carelessness.82 Damages are meant foremost to
compensate rather than to punish because counterbalancing or, so far as
possible, neutralizing the effect of a wrong is the willing and acting nature
of compassion. If the tort system were merely sympathetic, it might well
declare the fact of the injury on some record but provide no compensation
or other relief for its sufferer. If the tort system were merely retributive, it
might well merely punish the wrongdoer. But the tort system, having care
at its foundation and compassion as its corollary, must take the appropriate
action with respect to the sufferer of the injury. Thus, the purpose of tort
damages is to place the injured party in as close a position as possible to the
preinjury status or condition.83 Tort law damages rules permit recovery for
medical expense,84 wage loss,85 pain and suffering,86 mental and emotional
distress,87 loss of enjoyment of life,88 loss of consortium,89 and loss of
household services.90 Compassion being no fool, tort defense includes the
failure to mitigate.91 Collateral source rules, rules on the aggravation of
pre-existing conditions, and rules on subsequent injuries are all meant to
reflect just that degree of care and assistance that is fitting and proportional
to the injury brought about by the wrongdoer’s carelessness. Tort law
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
See Singleton v. Northfield Ins. Co., 826 So. 2d 55, 69 (La. Ct. App. 2002) (“[T]he
public policy underlying a tort action . . . is to . . . make whole a party harmed through
the fault of another.”).
See Head & Seemann, Inc. v. Gregg, 311 N.W.2d 667, 671 (Wis. Ct. App. 1981)
(“[T]he tort system is designed to make one whole to the extent possible through a
monetary award . . . [to] restore [plaintiff] to its preinjury position.”).
See, e.g., Molzof v. United States, 502 U.S. 301, 312 (1992); RESTATEMENT (SECOND)
OF TORTS § 924(c) (1979) (“reasonable medical and other expenses”).
See, e.g., RESTATEMENT (SECOND) OF TORTS § 924(b) (1979) (“loss or impairment of
earning capacity”).
See, e.g., Bowers v. Sprouse, 492 S.E.2d 637 (Va. 1997) (holding that a verdict for
medical expense without pain and suffering award is inadequate as a matter of law);
American States Ins. Co. v. Audubon Country Club, 650 S.W.2d 252 (Ky. 1983)
(same).
RESTATEMENT (SECOND) OF TORTS § 652H (1976) (damages for “mental distress”); Id.
§ 905 (damages for “emotional distress”).
See, e.g., Molzof, 502 U.S. at 312.
See, e.g., American Export Lines, Inc. v. Alvez, 446 U.S. 274, 284 (1980)
(“Currently, a clear majority of States permit a wife to recover damages for loss of
consortium from personal injury to her husband.”) (footnote omitted).
See, e.g., Gess v. United States, 991 F. Supp. 1332, 1347 (M.D. Ala. 1997) (holding
that Alabama law permitted recovery for loss of daughter’s household services).
See, e.g., Aisole v. Dean, 574 So. 2d 1248, 1253-54 (La. 1991) (holding that plaintiff
had a duty to mitigate damages by losing weight as directed by her doctors).
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seems founded on compassion at every such juncture with the suffering of
those injured by carelessness.
Impartiality. To say that care is impartial is to say much. To be
impartial is to do for each as true circumstances (rather than name, class,
reputation, or other immaterial and immeasurable intangibles) warrant.
Those who misunderstand care often do so because they think it is
something which favors one class over another—that it has as an attribute a
pitying bias for those who claim to require the help or consideration of
others. But care is not premised on class or on individual identity. It makes
no preference for one over another. Indeed the only preference which care
admits is to do as one is able for those to whom he is connected by
knowledge, proximity, or other association. It matters not to care if those
for whom one is able to care happen to be friends or enemies, leaders or
followers, native or alien. The ability to give favor is the determinant,
rather than the recipient’s identity. More particularly, although care
protects the weak, it does not favor them in its administration of mercy or
justice. Everyone gets their due, precisely because care has equity,
objectivity, fairness, proportionality, and impartiality as attributes.
Tort law certainly well reflects care’s impartiality. Indeed the entire
body of tort law is so persistently evenhanded as to be remarkable for its
dispassionate quality. Foremost among those doctrines are those of
comparative negligence, where the recovery of the injured person is
measured and reduced by the injured person’s own lack of consideration
for the putative injurer.92 Right where one might think the tort system
would extend (and perhaps distort) care’s compassion in order to favor and
prefer the injured, tort law instead balances the care of the injured against
the care of the injurer. Tort law does so because care is necessarily
impartial. Indeed several states have pattern jury instructions that one party
may act assuming that others will also act with reasonable care and
lawfully.93 So, too, are tort law’s rules of contribution designed to bring
about equity and fairness among all of the potential wrongdoers—even
92.
93.
See, e.g., Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542-43 (1994) (applying
comparative negligence in Federal Employers’ Liability Act (FELA) actions); The
Max Morris, 137 U.S. 1, 14-15 (1890) (replacing contributory negligence with
comparative negligence in maritime law); RESTATEMENT (SECOND) OF TORTS § 466
(1965) (contributory negligence).
See Kelley & Wendt, supra note 9, at 611 n.91 (citing Ala. 28.16 (2d ed. 1993 &
Supp. 2000); Ariz. Neg. 4 (3d ed. 1997) (limiting instruction to auto accidents); Cal.
3.13 (8th ed. 1994 & Supp. 2002); Conn. 2-25 (1998) (limiting instruction to auto
accidents); Del. 5.3 (2000); Minn. 26.10 (4th ed. 1999); Miss. 15:15 (2001); Mont.
2.04 (1987 & Supp. 2001); Nev. 4.03 (1986); N.H. 6.16 (1994 & Supp. 2001); Ohio
7.30(3) (2001); Or. 20.06 (1993); S.D. 12-06, 12-06A (1995); Tenn. 3.05 (3d ed. 1997
& Supp. 2000); Utah 3.12 (1993); Wash. 12.07 (1989)).
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when there are significant other relationships between them which might
give warrant to bias or playing favorites.94 Similarly the law of indemnity
allows one whose liability arises from relationship to the active wrongdoer
to equitably shift the loss to that active wrongdoer.95 Status, relationship, or
even deep pockets are not enough to defeat the impartial aspect of care, at
least so far as abilities and circumstances are able to bring about such pure
justice. The preference for individuals or classes exists in tort law
immunities only so far as those immunities are judged necessary to
preserve the essential role and authority of the one granted immunity.96
Indeed immunities expressly do not exist to protect the individual occupant
of the position granted immunity.97 It is only in the no-fault systems (those
hybrids which are so difficult to conceive of as tort systems precisely
because they are not based on care), that we see and sense real or potential
preferences and inequities—that the careful driver and employer should
pay for the injuries and losses caused by another’s carelessness.
Impartiality as an attribute of care is expressed everywhere throughout tort
law.
Unselfishness or Self-Control. Care naturally also includes the
attributes of unselfishness, self-discipline, and self-control. Care’s very
quality of impartiality or disinterestedness necessitates that there be an
aspect of unselfishness, self-denial, self-abnegation, and subordination of
the self, in care. Put simply, care discourages self-seeking and encourages
instead the consideration and seeking of the interests of others. While
selfishness would prefer the good of oneself at the unnecessary expense of
others, unselfishness as an aspect of care would to the contrary require the
active preference of the good of others in any instance in which that good
outweighs the good which might accrue by selfish action. Surely rational
choice to provide for the self is well within the dictates of care. Care does
not require self-immolation or self-denial purely for its own sake. Rather,
care requires a setting aside of the interests of the self when those interests
94.
95.
96.
97.
See, e.g., Jones v. Barwick, 386 So. 2d 7, 8 (Fla. Dist. Ct. App. 1980) (involving
defendant motorist’s claim against plaintiff’s husband for contribution); Redford v.
City of Seattle, 615 P.2d 1285, 1289 (Wash. 1980) (holding that a third-party
defendant is bound by an indemnity agreement between a contractor and a property
owner).
See, e.g., Ingram v. Nationwide Mut. Ins. Co., 129 S.E.2d 222, 225 (N.C. 1963)
(shifting liability from an employer to an employee wrongdoer).
See, e.g., Pierson v. Ray, 386 U.S. 547, 554 (1967) (judicial immunity); Tenney v.
Brandhove, 341 U.S. 367, 377 (1951) (legislative immunity).
Pierson, 386 U.S. at 554 (“[I]t ‘is not for the protection or benefit of a malicious or
corrupt judge, but for the benefit of the public, whose interest it is that the judges
should be at liberty to exercise their functions with independence and without fear of
consequences.’”) (citations omitted).
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are in conflict with the equal and greater interests of others. In other words,
the only basis for preferring the self over others would be that the greater
good would be accomplished by it—with a great caution that our innate
subjectivity and self-preference makes the judging of it highly hazardous.
We ought instead (as is the great and most common admonition) make
judgments based on what others would want of us. That is not to say that
rendering care will leave one penniless. Unselfishness is not fraught with
any real hazard of the lack of adequate provision. Much to the contrary,
good reputation is amassed and honest fees are earned by precisely such
careful conduct, the rendering of which lends purpose and meaning. At the
end, because self-control is a necessary aspect of the truth that we are each
conscious (and thus conscious of one another) it is equally an aspect of care
that the value of any action to the good of all beings (rather than the good
of oneself) is the only basis for preferring that action over any other.
If it is so that care includes a strong attribute of unselfishness and
self-denial, then tort law would naturally recognize it. And so indeed it
does in its fiduciary rules and doctrines against self-seeking and selfinterested transactions in the management of resources belonging to
others.98 Tort law expressly prohibits and condemns injurious self-seeking
and self-interest in fiduciary relationships. The hallmark of prudent
management is unselfish action rendered with the sole motive of preserving
and promoting the interests of another. But tort law of course roots itself in
a much more fundamental unselfishness, by adopting an objective standard
of reasonable care. The very conception of tort law as dependent upon an
objective standard of conduct rests on unselfishness. It is unselfishness
itself to remove self from the definition and determination of what conduct
one person owes another. Any time a tort case jury makes that
determination, and (more precisely) makes it based on an expressed
standard of reasonable conduct, that jury is imposing unselfishness on the
parties. Litigators understand better than most of us that care bespeaks
unselfishness, invoking as they often do the evidence of the defendant’s
self-control and self-denial—of actions taken by the defendant which
would appear to be against the defendant’s own self-interest but which
conversely tended quite clearly to promote the interest of others. There is
no better defense to a jury-tried tort claim than for the defense counsel to
demonstrate the client’s unselfishness, because unselfishness is a
fundamental and commonly understood attribute of care. Self-control is
surely expressed throughout tort law.
Liberty. How, one might reasonably ask, can liberty be an attribute of
98.
See, e.g., Walta v. Gallegos Law Firm, P.C., 40 P.3d 449, 460 (N.M. Ct. App. 2001)
(“avoid self-seeking conduct and self-dealing”); RESTATEMENT (SECOND) OF TORTS §
874 (1977) (violation of fiduciary duty).
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care, if care also implies self-control and self-denial? It is a fair question.
But it is also a question rather easily answered by a proper definition of
liberty. Most would incorrectly assume that liberty in its true sense implies
a freedom from all constraint. And if it were so, then indeed liberty would
be no aspect of care. But resort to the dictionary and to common wisdom
teaches otherwise. Liberty in its true and useful sense is freedom from
despotic or arbitrary authority—not from all authority, but from that
authority which has no rationality or reason as its basis.99 That concept is
rather easily recognized by lawyers trained in the meaning and
jurisprudence of due process. No law is constitutional without its having a
rational basis. Laws which are arbitrary or the product of whimsy or
caprice are laws without authority—unconstitutional laws which cannot be
enforced upon challenge.100 Yet liberty itself depends on order and thus on
reasonable constraint of self-interest. No one can honestly argue that any
society without law, that is, any society resting on the anarchic force and
violence of the powerful, is a society at liberty. Liberty depends in truth on
the existence of reasonable authority and on widespread obedience to it.
Only then do we have an authentic opportunity to choose. And it is in that
power of choice that liberty first and only arises. Thus one sees that care
has an attribute of liberty, for it is within the generous confines of care that
true liberty exists. Care requiring choice requires liberty to choose. But
moreover, care, once chosen, authorizes great and true liberty. As we shall
see, it is only in the absence of care (in carelessness) that we lose liberty.101
This kind of true liberty as an attribute of care is again both a
fundamental as well as a peculiarly expressed aspect of tort law. Liberty is
fundamentally an aspect of tort law in the pure sense that tort law exists as
a solely (or nearly so) remedial law.102 Tort law does not impose prior
restraint. It is not regulatory. It is not administrative. Injunctions are not
available to prevent potential torts.103 It is purely remedial in its frank
99.
100.
101.
102.
103.
BLACK’S LAW DICTIONARY 937 (8th ed. 2004) (defining liberty as “[f]reedom from
arbitrary or undue external restraint, esp. by a government”).
See McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (“Let the end be legitimate, let
it be within the scope of the constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional.”); see also Marbury v. Madison, 5
U.S. 137, 176 (1803).
See infra Part II notes 108-115 and accompanying text.
See United States v. Burke, 504 U.S. 229, 234-35 (1992) (“Remedial principles . . .
figure prominently in the definition and conceptualization of torts.”) (citing R.
HEUSTON, SALMOND ON THE LAW OF TORTS 9 (12th ed. 1957) (“[A]n action for
damages . . . [is] . . . an essential characteristic of every true tort.”)).
See Lawson v. Murray, 515 U.S. 1110, 1111-13 (1995) (Scalia, J., concurring) (noting
that injunctions are remedies for violation of judicial or legislative decrees, not to
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operation. Wrongdoers remain free not only to choose wrongs but to
continue in them—even after an injury. A product manufacturer may go
right on placing a product in the stream of commerce long after a claims
history demonstrates the product’s defectiveness. Product recall is no part
of traditional tort law.104 Those who expose others even to significant and
unavoidable risks of injury may under tort law go right on doing so, so long
as they recognize that tort law may hold them liable for resultant injury.105
Tort law certainly condemns no reasonably careful conduct, whether before
or after an injury. Statutes of limitation and of repose even grant a deserved
liberty from claims made after a plaintiff’s unreasonable delay. Tort law’s
liberty extends likewise to the plaintiff, to encounter open and obvious
hazards106 as well as to voluntarily assume known risks.107 In each instance
plaintiff and defendant are both free from the constraints of tort law to
engage in that conduct which they prefer. Tort law most certainly includes
care’s necessary attribute of liberty.
II. THE ATTRIBUTES OF CARELESSNESS
Liberty. What are the attributes of fault, negligence, or carelessness?
Care and carelessness are assumed to be opposed to one another in all
respects. Yet (it has already been stated) they do share attributes,108 and the
attribute liberty, at which the above consideration of care concluded, is
clearly only one of them. Liberty in this sense is meant as the
unconstrained ability to choose one or another course of conduct. If there
were no liberty, then there would be no wrong. The law cannot condemn
one who acts under true compulsion—or who has no liberty at all to act.
Fault depends upon liberty as much as it depends upon its errant exercise.
Liberty may be exercised expressly to accomplish the most cruel and
inhumane of ends, it may be exercised with indifference toward those same
cruel results, it may be exercised carelessly as to whether injury may result,
prevent potential torts).
104. See, e.g., Gregory v. Cincinnati, Inc., 538 N.W.2d 325, 326 (Mich. 1995) (holding
105.
106.
107.
108.
that there is no duty to recall a product adjudged to be negligently designed); Patton v.
Hutchinson Wil-Rich Mfg. Co., 861 P.2d 1299, 1303-04 (Kan. 1993) (holding that
while there may be a duty to warn consumers about a negligent design, there is no
duty to recall or retrofit defective products).
See, e.g., Spano v. Perini Corp., 250 N.E.2d 31, 34 (N.Y. 1969) (involving plaintiffs
in blasting cases seeking not to restrain freedom to blast but to recover compensation
for damaged property).
See, e.g., Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92 (1994) (holding that
there is a duty to warn of a hazard only if it is not obvious or would not be anticipated
by a skilled person in the usual performance of his work).
See RESTATEMENT (SECOND) OF TORTS §§ 496F-496G (1965 & Supp. 2004).
See supra Table I.
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or it may be exercised with due regard for the safety and general well-being
of others, or it may be exercised precisely to promote that safety and wellbeing. Liberty is a neutral attribute. It alone tells us nothing of the quality
of the liberated act. Indeed carelessness is readily recognized as the sum
and substance of a certain kind of (disordered) liberty. Carelessness
certainly has liberty as a necessary attendant to its every act.
And so the tort law practitioner knows that among the first of steps in
diagnosing the wrong is to determine whether the alleged wrongdoer had
liberty to act. Whether there were alternatives is certainly an expressed
element of (for instance) products liability law.109 Products liability law
judges defectiveness—carelessness, unreasonableness, or fault in design—
by whether the defendant manufacturer had the liberty to do otherwise. But
it is certainly not only in products liability law that liberty is an attribute of
unreasonableness or carelessness. The same is true for every run-of-themill motor vehicle accident: what other, distinctively-safe course could the
party have taken to avoid the accident? Every doctrine of unavoidable
harm—whether sudden emergency,110 unavoidably unsafe products,111 or
state-of-the-art design112—has its basis in the presumption that carelessness
depends upon some liberty of the putative wrongdoer to act. Beyond that
point, at the most extreme limits of human misconduct, we naturally see
carelessness’s attribute liberty as something for which tort law provides
accountability. Tort law was prepared, for instance, to provide a remedy
against one whose negligence contributed to the murders committed by
Jeffrey Dahmer in his exercise of a demonic liberty.113 Similarly tort law
has recognized liability for serious injury which was the foreseeable result
of the defendant’s licentious pursuit of a grossly malformed sexual
desire.114 But more mundanely, tort law would hold liable the vehicle driver
109. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIAB. § 2(b) (1998) (“A product . . . is
110.
111.
112.
113.
114.
defective in design when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the adoption of a reasonable alternative design.”).
See, e.g., Lockhart v. List, 665 A.2d 1176, 1182 (Pa. 1995) (holding it proper to
instruct jury separately on sudden emergency doctrine).
See supra text accompanying notes 48-49.
See, e.g., Beech v. Outboard Marine Corp., 584 So. 2d 447, 450 (Ala. 1991) (holding
that in order to prove defective design, the plaintiff must show a “safer, practical
alternative design was available to the manufacturer at the time” of production);
MICH. COMP. LAWS ANN. § 600.2946 (West 2000).
Estate of Sinthasomphone v. City of Milwaukee, 785 F. Supp. 1343, 1349 (E.D. Wis.
1992) (denying defendant city’s motion to dismiss plaintiffs’ constitutional tort claim
arising from police officer’s negligence in returning decedent to the custody of his
killer).
See, e.g., Saret-Cook v. Gilbert, Kelly, Crowley & Jennett, 88 Cal. Rptr. 2d 732, 746
(Cal. Ct. App. 1999) (affirming damage award in a case arising out of harassment by
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who recklessly races past a school for the sheer pleasure of speed,
notwithstanding the considerable risk of injury to the school children.115
Liberty can obviously be exercised for the most prurient, sensual, or
frivolous of pleasures. Or it can be exercised without adequate regard for
the likelihood of injury. Such liberties exercised without care for the one at
hazard will obviously give rise to a tort-based cause of action when the
careless risk comes to fruition in injury. Liberty is a first attribute of
carelessness.
Indulgence or Intemperance. Unlike care’s self-control,116
carelessness often has in it an aspect of indulgence or intemperance. To
indulge is to willingly pursue a sensual propensity beyond that which
reason would properly dictate. Intemperance is the quality of disregarding
the natural and orderly bounds to appetite.117 There is nothing wrong with
appetite. Our propensities serve important purposes. It is when we choose
to serve the propensity, rather than serve the purposes, that natural and
appropriate pleasures become endangering indulgences. One may indulge
or be intemperate as to intoxicating drink, sexual appetite, the accumulation
of property (which would be avarice or greed), or as to the exercise of
authority or power. But the indulgence need not be of an obviously
corrupting kind in order to bespeak carelessness. One can be intemperate as
to the love of one’s own children (spoiling the child) or indeed of one’s
own reputation (producing a dangerous pride), or as to rest (producing
laziness or idleness), or to work (hazarding one’s family and health). It is
the indulgence of the propensity in each case, not the propensity itself,
which marks the conduct as careless. And not every act of carelessness has
indulgence or intemperance as an attribute—but many do. Carelessness can
often be identified by a root or motive. Surely it makes a clearer case of
carelessness when its root or motive can be identified or reasonably
inferred. When the motive lies in the satisfaction of inordinate appetite,
carelessness is quite clearly revealed. Perhaps it seems obvious to say that
carelessness may have indulgence as an attribute, but one must keep in
mind that the act alone is not always, and to the contrary is often not,
a former lover).
115. See Morel v. Franklin Stores Corp., 91 So. 2d 42, 44 (La. Ct. App. 1957) (“[I]t is
gross negligence to operate a motor vehicle at high speeds through a section in the
city where schools are located, at least, where the motive of the operator is the sheer
pleasure of speed.”).
116. See supra text accompanying note 98.
117. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1155 (1986) (defining
indulgence as, among other things, “gratification of a kind [usually] forbidden or
frowned on or to a degree [usually] considered excessive”); BLACK’S LAW
DICTIONARY 825 (8th ed. 2004) (defining intemperance as “[a] lack of moderation or
temperance; [especially] habitual or excessive drinking of alcoholic beverages).
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sufficient to demonstrate a lack of care. The same act may be undertaken
for a variety of reasons, which depending on the circumstance, may be
quite prudent or not prudent at all. But an act undertaken out of
intemperance is a distinctive mark of carelessness.
Experienced tort law practitioners are quick to recognize and call the
jury’s attention to indulgence and intemperance. The inexperienced are less
so, possibly because legal training tends to divert the attention from the true
attributes of carelessness toward the purportedly more scientific elements
of the claim. The great trial lawyers identify and draw out our great
intemperate flaws. The poor ones look askance at them for more mundane
fodder. Many forms of intemperance are quite obvious in tort cases. The
drunken driver has done much to keep tort lawyers employed. Notice,
however, that in even such obvious cases it is not the drunkenness which
alone establishes the lack of care (think of the involuntary intoxication
cases118), but rather the consciously practiced indulgence of the appetite.
The personal injury practitioner who drafts the drunken driver’s crossexamination while thinking of that reality alone, will do much to serve the
injured client.119 Indeed, it takes a further indulgence of a different form
than drink to get the drunken driver behind the wheel of the vehicle, which
simply reveals another good area for inquiry. But it is not only the drunken
driver and sex fiend120 who can injure others by careless indulgence of an
appetite. So too can those who are motivated to an undue extent by the
accumulation of finances, for instance in the sale of their known-to-bedefective products.121 Tort law properly recognizes such avarice as the
basis not only for liability but also for an award of punitive damages.122 A
sensitive understanding and exploration of indulgence as an attribute of
carelessness is an important tool to the tort law judge and practitioner.
Willing or Volition. Equally is intention, will, or volition an aspect of
carelessness. To draw out a point made in the discussion above of
indulgence, desire or propensity alone is not carelessness. To condemn
desire itself would be to condemn all of us in all of our usual appetites. One
cannot condemn a person who desires to scratch or sneeze. It is instead the
118. See supra note 31 and accompanying text.
119. Such a cross-examination might sound like this: “And as you took another drink, you
were not thinking of how you would get home, were you? You were thinking of how
you could satisfy a thirst which had already been quenched to the point of your
intoxication?”
120. See, e.g., Saret-Cook v. Gilbert, Kelly, Crowley & Jennett, 88 Cal. Rptr. 2d 732 (Cal.
Ct. App. 1999).
121. See, e.g., Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727, 741 (Minn. 1980) (holding
that a multi-million dollar corporation’s reaping substantial profits by sale of
defective product supported punitive damages award).
122. See, e.g., id.
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conscious turning of the will and intention to the fulfillment of desire, and
not alone to its fulfillment, but to its fulfillment beyond its orderly bounds
and requirements to the destruction of the actor. It is committing the will to
gratify the appetite that draws an otherwise neutral circumstance within the
peculiar scope of carelessness. Thus, willing and intention are necessary
attributes of carelessness, in much the same way that they are necessary to
care.123 Only their focus has changed from the will to follow the reason to
the will to gratify the desire. It is a truth of our human condition that our
desires are safely gratified only when incidental to some other purpose. The
volitional pursuit of the gratification of desire nearly by definition commits
one to carelessness, for doing so removes from our focus not only those
around us who are thus placed at risk, but also our own health and wellbeing, which is so dependent upon the check and balance of those desires.
Perhaps it is because desires only grow when the attention is turned toward
their gratification—that desires are not gratified in the end, only further
pursued. But even if the cause is set aside as mysterious or unknown, it is
yet quite clear that willing or volition is an attribute of carelessness much
as it is an attribute of care.
Of course tort law fully reflects the volitional nature of carelessness.
Nearly everywhere one turns, tort law reflects a consciousness of the state
of mind of the actor whose conduct is under consideration. The entire body
of tort law having to do with intentional torts—trespass, assault and battery,
false arrest and imprisonment, conversion, intentional infliction of
emotional distress—depends upon a consideration of the willing state of
mind of the actor. In each such case there must be intent to bring about the
harm, or at least the knowledge that it is substantially certain (or in the case
of intentional infliction of emotional distress that it is highly probable) to
occur together with a demonstrated willingness to perform the act that
would nonetheless cause it. But it is not only intentional torts that include
an attribute of volition in the judgment of carelessness. It is negligent torts
as well, for as the above cases on involuntary reactions demonstrate, there
is no liability without a willingness or volition.124 Willingness, or a
consideration of the level or degree of intent, is a primary attribute of
carelessness as reflected throughout tort law.
Perception or Intelligence. As in the case of care, carelessness also
includes an attribute of perception or intelligence125—though surely not in
the positive normative sense in which we sometimes use those words. The
perception exercised by carelessness is not to conform one’s conduct to
what reason dictates. Here instead, perception and intelligence mean that
123. See supra text accompanying notes 24-34.
124. See supra notes 32-33 and accompanying text.
125. See supra Table I.
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the actor recognizes the situation to be one in which there are or may be
others whose interests could be affected by that action which the actor then
contemplates—and that the actor chooses the unreasonably perilous course
notwithstanding that intelligence or perception. There can be no
carelessness when there is no known or knowable object of care. One can
(and we sometimes do) engage in all kinds of wildness under circumstances
where there is no one who may even potentially be brought to harm by it.
Wildness under that circumstance would simply not be carelessness (except
perhaps toward oneself depending on the nature of the activity), because no
one would have been placed at risk. Thus, perception and intelligence are
clearly attributes of carelessness—though again, neutral ones shared with
care.
Tort law clearly recognizes perception and intelligence as aspects of
carelessness. Knowledge and perception go hand in hand with tort law’s
consideration of willingness, volition, and intent, discussed immediately
above. Whether the claim is one for an intentional or a merely negligent
tort, the knowledge or “knowability” of the circumstances leading up to the
injury are pertinent in every such case. Tort law’s doctrine of transferred
intent126 gives us a curious though perfectly illustrative example of how
perception and intelligence work as an aspect of carelessness. Under the
doctrine, it is sufficient to establish the intentional tort that the wrongdoer
has intended to strike, shoot, or otherwise cause the harmful offensive
contact upon one person, even though another unknown person in
proximity suffers the actual wrong. Carelessness appreciates the
circumstance. Once the untoward risk is knowingly encountered,
carelessness has been demonstrated whether the harm befell that one or
another. If there were something mechanical about the intentional tort
elements themselves, then we might have no rule for transferred intent. But
because perception is an attribute of the basic carelessness which tort law
attempts to judge, rather than being an extrinsic and mechanical element of
the tort itself, we have such a doctrine for transferred intent. Tort law must
condemn an intelligent encountering of the undue risk, because perception
or knowledge is an attribute of carelessness, just as much as tort law must
excuse as reasonably careful an act as to which there is no known risk.
Unreasonableness or Irrationality. Here though, in unreasonableness
or irrationality, lies a fundamental distinction in attributes between care and
126. See, e.g., Lopez v. Surchia, 246 P.2d 111, 113 (Cal. Ct. App. 1952) (holding
defendant liable for unintentionally shooting plaintiff because the injury was the
result of an illegal act); Carnes v. Thompasin, 48 S.W.2d 903, 904 (Mo. 1932)
(finding liability for injury to a bystander when the intended victim dodged the
defendant’s blow); William L. Prosser, Transferred Intent, 45 TEX. L. REV. 650
(1967).
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carelessness. Reason perceives circumstances as they are. The rational
mind comprehends. In care, the will conforms one’s conduct to the dictates
of reason. The rational mind in that sense prevails in the will. But with
carelessness, the rational mind and reason do not prevail. The will is
instead exercised in pursuit of something other than what reason and
rationality project. Choices are made which are inconsistent with, and often
openly opposed to, what the rational mind says is fitting and true. Thus to
be careless is to be without reason.
Carelessness has the quality of irrationality about it. A decision or
judgment is made which simply does not fit the actual circumstances.
Impulses and appetites prevail over the will, despite that the reason knows
better. Indeed the reason exists to declare truth to the will in order that the
will may acknowledge it and pursue the course most fitting to it.
Carelessness arises when the will pursues a course contrary to reason.
Nearly any careless act can readily be understood and characterized as
contrary to reason—that it was known and foreseeable that continued
action along that careless course would lead to consequences which were
less advantageous and more harmful than had the proper course been
pursued. In that manner careless action is irrational—stupid, unwise, and
lacking in sense. Carelessness surely has an attribute of irrationality.
Tort law of course employs in so many ways carelessness’s attribute
of unreasonableness. Little exposition is necessary. Unreasonableness is the
liability standard no less in ordinary negligence cases127 than in products
liability,128 premises liability,129 and breach of fiduciary duty.130
Professional malpractice provides a somewhat different form of this
rationality standard, measured as it is by a breach of the custom or standard
of practice.131 Indeed attention is given to professional standards precisely
when they would seem to approve of an unreasonable custom.132 The tort
127.
128.
129.
130.
See, e.g., RESTATEMENT (SECOND) OF TORTS § 291 (1965) (“unreasonableness”).
See, e.g., id. § 402A (“unreasonably dangerous”).
See, e.g., id. § 343(a) (“unreasonable risk of harm”).
See, e.g., Fed. Deposit Ins. Corp. v. Dannen, 747 F. Supp. 1357, 1362 (W.D. Mo.
1990) (applying the reasonable director standard in a case involving bank officer
misconduct).
131. See RESTATEMENT (SECOND) OF TORTS § 299A (1965).
132. See, e.g., Edward J. Imwinkelried, Expert Testimony by Ethicists: What Should Be the
Norm?, 76 TEMP. L. REV. 91, 105 (2003) (“[T]here is a rebuttable presumption that
the professional standard ought to govern, but the judge retains a measure of
discretion to decide that from a broader social perspective, the standard practice is
objectively unreasonable.”) (citing DOBBS, supra note 8, §§ 163-65); Matthew R.
Giannetti, Note, Circumcision and the American Academy of Pediatrics: Should
Scientific Misconduct Result in Trade Association Liability?, 85 IOWA L. REV. 1507,
1546 (2000) (“[A] customary practice is not dispositive and can become obsolete.”).
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cases use several means to limit custom evidence (including for instance
that the custom must first be found to have been universal133) whenever it
appears that the custom evidence is undifferentiated as to carelessness and
therefore suggests a practice that is less than reasonable. But that attention
to the standard merely proves the point that tort law at its foundation relies
heavily on irrationality or unreasonableness as an attribute of the
carelessness which it must and does condemn. Irrationality is clearly an
attribute of carelessness employed by tort law.
Selfishness or Interestedness. Carelessness plainly has an aspect of
selfishness about it. Yet we have such natural difficulty with the concept of
selfishness—is not some self-interest healthy?—that the thought bears
elaboration. Interest alone is not bad or wrong, for we are all interested.
The kind of interestedness or selfishness here employed is that which
rejects a fitting course of action which would properly have been chosen
for the general well-being, but is not chosen because it does not relate
sufficiently to some benefit to the self. What this form of interestedness
does is to make an end of benefiting the self, when such self-benefit is
properly only a means. In such a condition, one commits one’s will to the
satisfaction of the interests only (or primarily, or in any case unduly in its
objective measure) of the self. If it does not benefit the self, the course of
action is not chosen, even though it has an obvious and necessary benefit to
another. As in the case of indulgence or intemperance, selfishness or
interestedness can make a vice of what would ordinarily have been thought
to be a virtue. Rejection of otherwise warranted action because it does not
gratify the self is inherently carelessness.
Tort law naturally recognizes self-interested action as an attribute of
carelessness. As stated above in the discussion of unselfishness as an
attribute of care, tort law’s fiduciary duty frankly prohibits the obverse selfinterested action, or more accurately, leaves the self-interested trustee
exposed to liability in the event of a loss to the fiduciary.134 But again, tort
law employs selfishness when judging the careless in a far more
comprehensive and fundamental manner than those express prohibitions,
when it adopts an objective standard of unreasonableness for all fault-based
torts. The fault standard which lies at the heart of negligence law, being an
objective standard, rejects any justification one might claim for conduct
based on the conduct’s relationship to the subject actor.
Under that objective standard, the fact that an action appears
beneficial to the actor under consideration has no relevance whatsoever to
the determination of negligence. Indeed tort law expressly rejects that a
133. DOBBS, supra note 8, § 163 (citing Rentz v. Brown, 464 S.E.2d 617 (Ga. Ct. App.
1995)).
134. See supra notes 45, 98, and accompanying text.
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professional, for instance, might attempt to justify the injury-causing
conduct in question with testimony that it conformed to the testifying
expert’s own personal standard135 or that the standard should be that of a
person with the defendant’s own particular training and experience.136 Tort
law must remain determinedly devoted to an objective measure of conduct,
because to make the standard subjective to the needs, qualifications, and
interests of the party whose conduct is in question would be to equate
selfishness or benefit to the self with reasonable care, which it cannot be.
Indeed in any case in which the plaintiff is properly found to have been
injured by the defendant’s carelessness, the necessity of such judgment has
almost by definition arisen only because of the defendant’s selfishness—
the failure to conform to the external standard. Again, litigators understand
the selfish aspect of carelessness better than most of us, for they recognize
that jurors innately perceive and respond with appropriate condemnation to
those acts which evidence self-interest at the expense of others. There is
little better evidence for a jury-tried negligence claim than for plaintiff’s
counsel to demonstrate the defendant’s self-interest in the unreasonably
hazardous action—that the defendant was speeding because they were late
to work, for instance137—because selfishness is a fundamental and
commonly understood attribute of carelessness.
Partiality. Partiality, prejudice, and preference are closely related to
selfishness and self-interest as an aspect of carelessness. Once the personal
interest of the actor in engaging in certain conduct becomes evident to that
actor, carelessness arises when that interest is preferred over the interest of
others. It is not merely the self-interest, but rather the actual preferring of
that interest over other greater interests, which marks carelessness. Without
the preferring, there is nothing to be judged as careless. For it to be
careless, one must volitionally intend and will the act with a motive that the
act result in some gain to oneself over that gain which might accrue to
others by different, careful action. If pride is the tendency to raise oneself
up to a disproportionate height regarding status, accomplishment, heritage,
or other natural attribute,138 then pride must be a common incident of
carelessness. For the great tendency of carelessness is to exhibit injustice,
135. See Boyce v. Brown, 77 P.2d 455, 458 (Ariz. 1938).
136. See Heath v. Swift Wings, Inc., 252 S.E.2d 526, 529 (N.C. Ct. App. 1979) (rejecting a
subjective standard of care based on defendant’s own training and experience).
137. See, e.g., Patin v. State Farm Ins. Co., 395 So. 2d 466, 469 (La. Ct. App. 1981) (Foret,
J., concurring) (opining that the driver, who claimed that she was late for work, was
“reckless to the extent of being wanton”).
138. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1799 (1986) (defining pride
as “a sense of one’s own worth and abhorrence of what is beneath or unworthy of
oneself”).
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unreasonableness, partiality, and falsehood as to the true merit and state of
the careless person. Pride and preference are relational attributes, because
they consist of comparison. Pride denies the value and merit of others just
at the point at which it exhibits a disproportionate evaluation of one’s own
value. Pride and personal preference are thus tied to carelessness in every
way. Where carelessness exists, so will one find preference, partiality, and
pride as its ready hallmarks.
Whether it is something as simple as the speed at which we transport
ourselves along the highway, or something as complex as a fraudulent
transaction, tort law in every instance recognizes partiality as an aspect of
carelessness. Certainly it is so for fraudulent misrepresentation, in which
the intent of the wrongdoer must be to induce the wronged into a
transaction in which the wronged will be deceived.139 Such action plainly
displays partiality in that one will benefit by the other’s harm. But
carelessness is not much less partial in the occurrence of negligence. The
driver who exceeds the speed limit may in fact do so for good cause.
Ambulance drivers and police officers routinely do so, without their
conduct being judged as careless. They certainly intend to speed, but they
do so not out of a personal preference to reach a certain destination sooner,
but rather, out of a duty of care owed to the one suffering the medical
emergency, or to the public at risk of the fleeing criminal’s misconduct.
Think for a moment of a high speed chase in which the police and suspect’s
vehicles are both moving at the same rate of speed with the drivers’ similar
voluntary intention that the vehicles do so. Yet the intention of the fleeing
suspect to prefer the suspect’s own freedom over the safety of those along
the highway will determine the suspect’s actions highly careless, whereas
the officer’s contrary intention to protect the public will be judged the
opposite.140 Partiality is clearly an attribute of carelessness recognized by
tort law.
Effectiveness or Efficacy. As in the case of care,141 effectiveness or
efficacy is an attribute of carelessness. There must be an accomplishment,
in other words, of the selfish, partial, unreasonable end. There are careless
thoughts, but we are not concerned here with those latent departures.
Selfish, careless thoughts that one has no ability to carry out are no more
139. See, e.g., Johnson v. Univ. Health Servs., Inc., 161 F.3d 1334, 1341 (11th Cir. 1998)
(denying a physician’s claim that she was fraudulently induced to relocate in order to
join defendant’s medical practice because the physician failed to produce “evidence
of justifiable reliance”).
140. See, e.g., Standard v. Hobbs, 589 S.E.2d 634, 638-39 (Ga. Ct. App. 2003) (holding
that qualified immunity protected a police officer from liability for injuries resulting
from a high-speed chase).
141. See supra text accompanying notes 46-51.
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than the seeds of harmfulness. There must be some action produced in
order for the desire or propensity to ripen into carelessness itself. It is only
when the desire or propensity influences the will or intent so as to produce
a choice of wrong ends, that careless action will in fact be produced. No
one is condemned for their unexpressed, latent thoughts over which we
often have little control in any case. It is the conscious nurturing and
eventual pursuit of those selfish thoughts by the will that brings about
careless action. Effectiveness or efficacy is neutral in itself. It is an aspect
of both care and carelessness. But it is the choice of an opposite end
(pursuit of selfish interests at the expense or to the ignorance of the
interests of others) which will, given time and fruition, inevitably produce
its careless harm as a result.
Tort law reflects the efficacy of carelessness in large part by limiting
liability to those instances where real and substantial harm results. For
instance, tort law does not hold the propositioning of a woman to be an
actual assault142 or offensive profanity and vulgarity to be a tort.143 The
thought of the wrong, the intent to harm, or even an unaccepted invitation
to the wrong is alone not enough. The willingness or volition must be
effective by taking form in a damaging result. The old impact rule (still
retained in some jurisdictions144) and the more recent physical
manifestation of injury doctrine145 are other expressions of the efficacy tort
law recognizes to be an attribute of carelessness. Indeed efficacy defines
the limits and contours of liability as to which causation is an essential
element. Those many and varied doctrines of causation—including
especially the “but for” test146—are solid evidence that tort law recognizes
142. See, e.g., Jones v. Clinton, 990 F. Supp. 657, 677 (E.D. Ark. 1998) (holding that a
143.
144.
145.
146.
“mere sexual proposition or encounter” “does not constitute sexual assault”); Reed v.
Maley, 74 S.W. 1079, 1080 (Ky. 1903) (holding that a woman has no cause of action
“against a man who [only] solicits her to have sexual intercourse with him”).
See, e.g., Anderson v. Oklahoma Temp. Svcs., Inc., 925 P.2d 574, 576 (Okla. Civ.
App. 1996) (holding that profanity and vulgar behavior are not enough to state a tort
cause of action).
See, e.g., Champion v. Gray, 478 So. 2d 17, 18-19 (Fla. 1985) (allowing recovery in a
case where a mother collapsed and died upon seeing the dead body of her daughter at
an accident scene).
See, e.g., Daley v. LaCroix, 179 N.W.2d 390, 395 (Mich. 1970) (holding that
recovery is possible when plaintiff’s “definite and objective physical injury is
produced as a result of emotional distress proximately caused by defendant’s
negligent conduct”).
See, e.g., Rouleau v. Blotner, 152 A. 916, 916 (N.H. 1931) (holding that the
defendant’s failure to use a turn signal was immaterial because the plaintiff saw
defendant turn. “[I]f [the plaintiff] were a deaf man, the failure to sound whistle, bell
or horn would be immaterial.”).
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efficacy to be an attribute of carelessness. Tort law does not condemn the
idle thought, but rather its poisonous fruit.
Opposition to Good. When we consider more closely the nature of
selfishness as an attribute of carelessness, it becomes evident that
selfishness is not merely neutral as to what would be good, but rather it is
in active opposition to it. So long as the will is committed to the self rather
than to the care and love of others, it must stand opposed to that good.
When the will resists the urge to consider and pursue the interests of others
rather than of the self, and instead pursues the interests of the self, it must
actively oppose those interests of others. One cannot serve two masters at
once.147 If one serves oneself as a master, it will not only be at the expense
of the other master one might better serve but in opposition to that master.
Carelessness in other words may have its root in disregarding the wellbeing of another, but it has its full flower in the active opposition to that
other.
We see carelessness’s opposition to good displayed in many tort
doctrines and cases. There is of course the entire body of intentional tort
law comprised in large part of assault and battery and trespass, each
distinguished by the element of intent where harm is known to be
substantially certain to occur148—in active opposition to good. The
intentional infliction of emotional distress tort lies just within the periphery
of these other intentional tort cases, where harm is known to be highly
likely to occur.149 Tort law takes pains to distinguish intentional from
merely negligent torts,150 in part precisely because such intentional
opposition to good is a distinct attribute of carelessness. Certainly those
cases in which liability is found or even punitive damages are awarded for
the recklessness, willfulness, or wantonness which the defendant’s conduct
displayed for the safety of the plaintiff151 are representative of
carelessness’s opposition to good. It seems precisely where the defendant
intends the injury, or is so reckless with regard to it as to warrant not just
deterrence but punishment, that opposition to good is most apparent, and
147. Matthew 6:24.
148. Garratt v. Dailey, 279 P.2d 1091, 1094 (Wash. 1955) (holding that a five-year-old boy
would only be liable for injuries suffered by the plaintiff when the boy moved her
chair if he knew with substantial certainty that she would attempt to sit down where
the chair had been before he moved it).
149. See RESTATEMENT (SECOND) OF TORTS § 46 (1965).
150. See, e.g., Spivey v. Battaglia, 258 So. 2d 815, 817 (Fla. 1972), cited in DOBBS, supra
note 8, at 50 (holding that whether a particular act is negligent or intentional depends
upon the facts of the case).
151. See RESTATEMENT (SECOND) OF TORTS § 500 cmt. A (1965); Seeholzer v. Kellstone,
Inc., 610 N.E.2d 594, 597 (Ohio Ct. App. 1992) (holding that willfulness reflects state
of mind and wantonness probability of harm).
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tort law is most willing to extend liability, multiply damages, and punish in
addition to simply deterring carelessness. Tort law recognizes that
opposition to good is an aspect of carelessness and accordingly seeks to
discourage, defeat, and remedy it.
Cruelty. Cruelty, or the perverse pleasure some take in the loss or
harm of another,152 is an aspect of carelessness—never of care but often of
carelessness. Unfortunately, selfishness always has one or more victims or
subjects, or it would not be selfishness. Still more unfortunately, the
careless person ordinarily readily identifies the subject or victim of that
one’s selfishness and, in doing so, necessarily harbors and develops a
hardness of the heart toward that victim or subject, which can frankly be
called cruelty. You will often hear the careless jest or speak poorly of their
subjects, in attempted justification of their selfishness. But such denigrating
jest or speech is readily seen as evidence of the cruelty or hardness which
characterizes carelessness. Often the attempted justification will clothe
itself in the language of responsibility or justice. In other words, cruelty can
also take the form of vengeance once a wrong has been committed. But the
clothes are ill fitting. The subjectivity and hardness of the careless attitude
will yet be reflected notwithstanding that the claim is made that justice
requires vengeance. Cruelty is an attribute of carelessness no matter in
whom it is reflected.
The tort practitioner is well acquainted with cruelty as an attribute of
carelessness, and has at hand tort law’s ready tools to combat it. Parental
immunity from a child’s tort action is waived in some jurisdictions for
cruel and inhumane treatment.153 Cruel intent waives the statutory
governmental immunity in some cases,154 just as cruelty in a marriage can
establish grounds for a tort action within a divorce.155 The continuing tort
doctrine permitting recovery even for wrongs which have occurred outside
the limitations period (so long as additional continuous wrongs are within
152. See BLACK’S LAW DICTIONARY 405 (8th ed. 2004) (defining cruelty as “the
intentional and malicious infliction of mental or physical suffering”).
153. See, e.g., Renko v. McLean, 697 A.2d 468, 472 (Md. 1997) (refusing to waive
parental immunity in all instances of wrongful parental conduct); Pullen v. Novak, 99
N.W.2d 16, 25 (Neb. 1959) (holding that “brutal, cruel, or inhuman treatment” must
be shown before a child can recover in tort from a parent); Mahnke v. Moore, 77 A.2d
923, 926 (Md. 1951) (“Justice demands that a minor child shall have a right of action
against a parent for injuries resulting from cruel and inhuman treatment or for
malicious and wanton wrongs.”).
154. See, e.g., IDAHO CODE § 6-904B (Michie Supp. 2003).
155. See, e.g., Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993) (holding that an
action for intentional infliction of emotional distress was appropriate in a divorce case
in which the husband “emotionally coerce[d]” the wife to engage in sadomasochistic
conduct).
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the period)156 is a particular sanction against cruelty. That constitutional tort
actions are allowed for cruel and unusual punishment157 is another example
of the civil sanction the law is ready to provide against such treatment. Tort
law of course seeks to balance perfectly care and compensation against
satisfaction and release, solely to ensure that there is no cruelty. The tort
law plaintiff is just as subject to sanction for frivolous claims asserted to
burden and oppress the defendant, as the defendant is for frivolous
defenses.158 Tort law opposes cruelty precisely because cruelty is an
attribute of the carelessness, which is tort law’s raison d’etre.
Injustice. If justice is equity or fitness of one’s treatment of others
according to their merit,159 injustice must be the opposite: a disproportion
between treatment and merit. Justice requires that one promote the interests
of one’s neighbor as much as one’s own interests, because that treatment is
what is due. Injustice allows one to prefer one’s own comfort, safety,
provision, and gratification over one’s neighbor’s equal interests, when that
mistreatment is what is not due. The careless person by preferring self over
others mistreats others at every turn, except where doing so would be
against the selfish person’s own interests. Carelessness’s injustice would be
patent at every turn, because preferring the self over others leads instantly
to a string of unmerited wrongs, except that the careless one often perceives
it to be in the self-interest not to be thought of as selfish. Selfishness as a
form of carelessness regards others solely for the value they can lend to the
selfish one rather than as possessing an intrinsic and equal value, and thus
promotes a mistreatment of others out of accord with their merit. Injustice
is thus an attribute (one of the thorns or poisons) of carelessness.
Tort law in its essential conception condemns injustice, for it
establishes a rule and duty of care which mandates reasoned regard for the
safety and value of others. It is precisely the defendant’s failure or refusal
to give such reasoned and adequate regard for the plaintiff that gives rise to
a negligence cause of action. In any instance in which the defendant in a
tort action can be shown to have given greater regard for the defendant’s
profits, interests, merits, or safety, than that regard given for the injured
plaintiff, the plaintiff will have shown liability based on unreasonable
156. See, e.g., Feltmeier v. Feltmeier, 798 N.E.2d 75, 87 (Ill. 2003); Pavlik v. Kornhaber,
761 N.E.2d 175, 187 (Ill. App. Ct. 2001); Cusseaux v. Pickett, 652 A.2d 789, 794
(N.J. Super. Ct. Law Div. 1994).
157. See, e.g., Carlson v. Green, 446 U.S. 14, 17-23 (1980) (allowing a tort claim under the
Eighth Amendment in a case where a prisoner was denied medical care).
158. See, e.g., MICH. COMP. LAWS ANN. § 600.2591(1) (West 2000) (providing for
sanctions for frivolous filings as part of tort reform legislation).
159. See BLACK’S LAW DICTIONARY 881 (2004) (defining justice as “[t]he fair and proper
administration of laws”).
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conduct. Such is the nature of the risk/utility balancing tests which are
always found at the center of tort law.160 Tort law grants strict liability for
harm caused by abnormally dangerous activities precisely when greater
regard is given for the activity than for the value it contributes to the
community.161 So too is the most popular test for defective products
dependent upon a balancing of the interests, to determine whether the
defendant gave an objectively balanced regard for the safety of those who
may be injured by its product.162 Tort law grants to those who act in
peculiar roles, such as emergency personnel,163 rescuers,164 or innocent
passersby, peculiar regard fitting to their circumstances, where liability
would arise only when their unjust conduct did not meet the merits of the
situation. Tort law requires of us that our assessment of the interests and
safety of others meet an objective standard fitting the merits of their lives
and circumstances. When our assessment does not fit those merits, which is
the nature of injustice, then tort law condemns, and provides compensation
for, the resulting harm.
Falsehood. Just as truth or veracity is an aspect of care,165 so is
falsehood an aspect of carelessness. The careless person tells truths only
when it is in that person’s self-interest. Falsehood, distortion, and lies
follow the careless person like the wake of a boat, for selfishness itself is
diametrically opposed to the truth of the inherent value of universal, rather
than of discrete, insular, or self-existent, being. By placing the self at the
center as the supreme arbiter and good, the careless person fundamentally
distorts the true state of relationships, and puts everyone else at risk. The
careless person’s mind may from time to time remind the careless person of
the truth that others have equal value and thus ought to be equally regarded.
But the careless person’s selfishness will promptly deny that truth and
reestablish the fundamentally false premise on which the careless person
160. See RESTATEMENT (SECOND) OF TORTS § 293(a) (1965) (stating that negligence under
161.
162.
163.
164.
165.
a risk magnitude analysis is determined in part by “the social value which the law
attaches to the interests which are imperiled”).
See id. § 520(f) (1977) (stating that an abnormally dangerous activity for purposes of
strict liability is determined in part by the “extent to which its value to the community
is outweighed by its dangerous attributes”).
See id. § 402A (1965); see also Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 186
(Mich. 1984) (adopting the risk/utility test for products liability cases); O’Brien v.
Muskin Corp., 463 A.2d 298, 306 (N.J. 1983) (concluding that the risk/utility test is
one means of establishing the existence of a defect).
See, e.g., DOBBS, supra note 8, § 129 (citing RESTATEMENT (SECOND) OF TORTS §
296(1) (1965) (explaining that the emergency doctrine modifies the standard of care
when the emergency was not of the party’s own making)).
See, e.g., id § 317 (citing RESTATEMENT (SECOND) OF TORTS §§ 314A, 314B (1965)).
See supra notes 73-79 and accompanying text.
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acts in furtherance of self-interest rather than common and universal
interest. Falsehood is an inherent aspect of carelessness.
Tort law is thus found to properly condemn falsehood not only in its
expression but also in its definition or being. By mandating due regard for
one another, and by imposing liability for injury where that regard is not
given, tort law opposes falsehood in its deepest root or conception. Tort
law stands directly against falsehood by protecting and promoting the truth
of sentient being. As noted above, certainly tort law condemns and
provides remedy for direct falsehoods like misrepresentation and
defamation,166 as well as indirect and implied falsehoods like breach of
warranty and conversion.167 But beyond that liability, tort law further
imposes negligence liability when a defendant injures by falsely presuming
to afford himself greater regard than the regard given for the injured
plaintiff.168 Tort law does not excuse any individual or group from the duty
of care except in the doctrines of immunity, where such an exemption is
necessary to promote truth and equality.169 Tort law in so many respects
condemns the falsehood which is an attribute of tort law’s nemesis,
carelessness.
III. A PROPOSED NEGLIGENCE JURY INSTRUCTION
These then are the obvious attributes of care and carelessness, and
some of the ways in which tort cases, rules, and doctrines reflect those
attributes. How can these attributes be made more patent in tort law
practice? Consider as an example the somewhat circular and opaque pattern
jury instructions on reasonable care, referenced above,170 which do little
more than intone care as a mantra without in any degree defining it. It
might be informative, wise, and refreshing to see those jury instructions
supplemented with reference to the attributes of care. A more informative
jury instruction based on the attributes of care might well state:
In making your determination of what reasonable care required
of the plaintiff and the defendant under the circumstances which
you find existed at the time of injury, you should consider those
166. See RESTATEMENT (SECOND) OF TORTS §§ 525, 526, 530, 558 (2000); see also
FOWLER V. HARPER ET AL., 2 THE LAW OF TORTS 24, 377-78 (2d ed. 1986).
167. See RESTATEMENT (SECOND) OF TORTS §§ 222A, 229, 402A cmt. m (2000); see also
RICHARD A. EPSTEIN, TORTS 31-33, 385-86, 392-94 (discussing conversion and
warranty).
168. See RESTATEMENT (SECOND) OF TORTS §§ 281, 283 (2000); see also FOWLER V.
HARPER ET AL., 3 THE LAW OF TORTS 381-86 (2d ed. 1986) (discussing the theory of
negligence).
169. See EPSTEIN, supra note 167, at 611-14 (discussing the principle of immunity).
170. Supra note 93.
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qualities of care which you believe are recognized in and valued
by the community, including but not limited to the extent to
which the conduct was: willingly and voluntarily done; done
with knowledge of or an appreciation for the likely results; likely
to be effective in bringing about the result; within the bounds of
that free conduct which an ordered society can permit; impartial
and fair as between different persons; considerate of those who
lack what is possessed by other members of society; fitting to the
merits of the conduct; in accord with real and genuine
circumstances rather than false, fanciful, or imagined; reflective
that each person is only one among many; not unduly borne of
individual interest and desire; reasoned and rational rather than
arbitrary; promoting of the general health and welfare; not
thoughtless or wanton but in due regard for the circumstances
including the capability and vulnerability of others. You should
not give undue weight to any one of these qualities but may
consider all or any of them, or such other qualities of reasonable
care which you believe are recognized and accepted in your
community, in reaching your decision on what constituted
reasonable care under the circumstances you find existed.
This jury instruction lists and paraphrases the attributes of care set out
in Table I. The extent to which jurors would understand and recall such an
instruction among the many other instructions jurors receive is of course
open to question. But such an instruction would not leave jurors largely
guessing what is meant by reasonable care, and would instead encourage
jurors to think about and discuss the conduct in question within the context
of those community values which the attributes of care most reflect. Care is
a powerful tool—among law’s most powerful. With tort law in such
relative upheaval and suffering such political and popular disrespect, it may
well be time to remove some of the tarnish from this powerful tool,
beginning with an appropriate jury instruction.