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

Witt & Tani, TCPI 4. Negligence Standard
owned by B (and B might not have been negligent and so not liable even if a cause of the
accident, or might be judgment-proof and so not worth suing), or that he simply has not bothered
to conduct an investigation. If the first alternative is true, he should of course lose; and since it
may be true, the probability that the plaintiff was hit by a bus owned by A is less than 51 percent
and the plaintiff has failed to carry his burden of proof. If the second alternative is true—the
plaintiff just hasn’t conducted an investigation—he still should lose. A court shouldn’t be
required to expend its scarce resources of time and effort on a case until the plaintiff has
conducted a sufficient investigation to make reasonably clear that an expenditure of public
resources is likely to yield a significant social benefit. This principle is implicit in the law’s
decision to place the burden of producing evidence on the plaintiff rather than on the defendant.
Suppose it would cost the court system $10,000 to try even a barebones case. This expenditure
would be worthless from the standpoint of deterring accidents should it turn out that the bus was
owned by B. It makes sense for the court to require some advance investigation by the plaintiff in
order to increase the probability that a commitment of judicial resources would be worthwhile.
These objections to basing a decision on thin evidence do not apply to the present case.
Not only is there no reason to suspect that the plaintiff is holding back unfavorable evidence; it
would have been unreasonable, given the stakes, to expect her to conduct a more thorough
investigation. This is a tiny case; not so tiny that it can be expelled from the federal court system
without a decision, but so tiny that it would make no sense to try to coerce the parties to produce
more evidence, when, as we have said, no inference can be drawn from the paucity of evidence
that the plaintiff was afraid to look harder for fear that she would discover that a customer and not
an employee of Wal-Mart had spilled the soap.
We conclude, therefore, that the jury verdict must stand. And, Wal-Mart, this decision, a
reported appellate decision, unlike the decision of the district court, will have precedential
authority!
Affirmed.
Notes
1. Statistical evidence in the common law. Why is it not enough for plaintiffs to prove their
case using statistical evidence that establishes a “more likely than not” probability that the
defendant was negligent?
According to Professor Daniel Shaviro, courts refuse to rule for plaintiffs in such cases for
three reasons. First, relying on such evidence “makes the unjust punishment of innocent persons
certain, rather than probable,” effectively allowing such defendants “to be sacrificed for general
social benefit.” Daniel Shaviro, Commentary, Statistical-Probability Evidence and the
Appearance of Justice, 103 HARV. L. REV. 530, 535 (1989) (emphasis omitted). Second, such
evidence “violates the principle that defendants should be treated as unique individuals.” Id. at
537 (emphasis omitted). Third, “defendants should not be held . . . liable absent ‘actual belief’ by
the jury, and such belief cannot be derived from statistical-probability evidence.” Id. at 539.
Professor Laurence Tribe similarly argues that courts’ reliance on statistical evidence
“dehumaniz[es] . . . justice,” directing jurors to focus on defendants’ liability, rather than
innocence, and “distort[ing] . . . important values . . . that society means to express or to pursue
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