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

Witt & Tani, TCPI 4. Negligence Standard
Liability insurers also typically adopt “experience rating” for their insurance premiums.
Insured policy holders whose conduct generates covered accidents often find that their premiums
go up. In insurance areas like automobile insurance, insurers also use information such as traffic
infractions to gauge an insured driver’s likelihood of being in an accident. Experience rating can
thus generate incentives of its own for insured actors to take account of the risk of harm to
others—incentives that are one degree removed from tort law, but which some observers think
may be even more powerful deterrents than the prospect of paying tort damages. The close and
certain connections between accidents and traffic infractions, on the one hand, and increased
automobile insurance rates, on the other, may make the insurance policy incentives for safety
much more salient than the highly attenuated and uncertain connection between unsafe driving
and the prospect of tort liability. See, e.g., John G. Fleming, The Role of Negligence in Modern
Tort Law, 53 VA. L. REV. 815, 825 (1967).
5. Cost-benefit in practice (III): Juries and jury instructions. Finally, we are left with the
realist’s question: does cost-benefit analysis actually influence juries’ decisions? Law professors
Patrick Kelley and Laurel Wendt reviewed the recommended jury instructions in forty-eight states
to see how courts instruct juries on the negligence standard. They laid out five possible
interpretations of negligence: (1) whether the defendant’s conduct was morally wrong according
to prevailing community norms; (2) whether individuals in the jury, upon placing themselves in
the defendant’s shoes along with prudence and carefulness, would have acted as the defendant
actually did; (3) whether the defendant breached a safety convention commonly understood in the
community to protect the kinds of people like the plaintiff; (4) whether an ordinary, reasonable
person would have foreseen danger to others under known circumstances, as described by
Holmes; and, finally, (5) whether the defendant’s actions accorded with an ex ante cost-benefit
analysis, as described by Hand in Carroll Towing.
They found that the first three interpretations had varying support by states’ jury
instructions. However, they found judges rarely instructed juries using the fourth or fifth
interpretations of the negligence standard.
[T]here seems to be no support in the pattern negligence instructions for Holmes’s
theory of the negligence standard. Foreseeability is not mentioned in most of the
negligence instructions, and [in the five states] where it is, the foreseeability of
danger from the defendant’s conduct simpliciter is not presented as the negligence
standard . . . .
Second, the cost-benefit test of negligence does not seem to be the probable meaning
of even those five pattern negligence instructions couched in terms of unreasonable
foreseeable risk. . . . None of the foreseeability instructions except that of
Louisiana’s provision set out the detailed cost-benefit explanation of unreasonable
foreseeable risk. . . . Each instruction identifies foreseeability as the foresight of an
ordinary prudent person, and all but Wisconsin’s instructions ask the jury to
determine, in addition to foreseeable harm from the defendant’s act, whether that
conduct could reasonably be avoided, or whether the act is one that a reasonably
prudent person, in the exercise of ordinary care, would not do. . . . It seems to us
that a jury would interpret that standard not as an invitation to engage in cost-benefit
analysis, but as an invitation to determine how reasonably careful people in their
community would in fact act in light of all the circumstances, including the
180