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

Witt & Tani, TCPI 4. Negligence Standard
activities whose undesirability consists only in the fact that they result in accidents
and then only to the extent that people would, if they knew the costs of these
accidents, prefer to abstain from the activity rather than pay those costs. . . .
The question then is, Can we not deter these acts or activities more effectively than
through a system of fault liability which, together with insurance, merely raises
somewhat the cost to those who as an actuarial class tend to do these acts or
activities? I suggest, and it is not a particularly original suggestion, that a system
of noninsurable tort fines assessed on the individual doer of the “useless” act,
together with general nonfault liability, would do a far better job of deterring
valueless activities of this type.
This leaves those acts or activities that, as a society, we are unprepared to call
valueless—those activities that, subject to some subsequent political
reconsideration and modification, we want to permit to the extent that they can pay
for their accident costs. I would suggest, though it is not crucial to my analysis, that
these comprise the bulk of the decisions as to accidents. Despite Learned Hand’s
formulation that negligence is a balancing of the “danger of an activity” against
what must usefully be given up to avoid that danger, it is altogether too clear that a
system of fault liability is designed to deal only with “useless” conduct and not with
the more subtle interests involved in measuring the value and danger of an activity.
If using a threshold of terrazzo is not deemed careless, then a system based on
fault—as an all-or-nothing proposition—will have no effect whatever on this
activity. The best way we can establish the extent to which we want to allow such
activities is by a market decision based on the relative price of each of these
activities and of their substitutes when each bears the costs of the accidents it causes.
This can be done by a system of nonfault enterprise liability, a system that assesses
the costs of accidents to activities according to their involvement in accidents. By
contrast, our fault system, with insurance, assesses the cost of an activity not
according to the number of accidents it causes but according to the number of
accidents it causes in which certain predetermined indicia of fault can be attributed
to it. This results in a deterrence of only faultily caused accidents in an area where
by hypothesis we are interested in deterring activities not because of some moral
implications but because of the accidents they cause.
Guido Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78
HARV. L. REV. 713, 718-20 (1965).
Elsewhere, Calabresi makes the point that the nonfault or strict liability standard for
accidents would accomplish the same economic goals as Learned Hand’s negligence test:
If we make the assumptions under which the Learned Hand test would work
adequately, the fascinating thing is that as good a result in terms of reducing primary
accident costs could be achieved by a liability rule which is the exact reverse of the
Learned Hand test. Under such a “reverse Learned Hand test,” the costs of an
accident would be borne by the injurer unless accident avoidance on the part of the
victim would have cost less than the accident. If a reverse contributory negligence
test were added, the victim would bear the accident costs only if the injurer could
not also have avoided the accident at less cost than the accident entailed. . . .
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