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

Witt & Tani, TCPI 4. Negligence Standard
through . . . legal trials.” Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the
Legal Process, 84 HARV. L. REV. 1329, 1375, 1330 (1971). For more information on statistical
evidence in trials, see infra Chapter 6, Causation.
Recall, however, the case of Martin v. Herzog, in which Mrs. Martin could not recover
damages after her husband was killed by a car that crossed the median simply because their buggy
was not equipped with a light. The rule of per se negligence forbids courts from taking into
account some of the values that Professor Tribe and others might think important. A rule
characterizing certain conduct as per se negligent is a kind of statistical judgment about the class
of cases covered by the rule. Why isn’t the use of rules, as opposed to standards, similarly
perceived to be objectionable as statistical proof?
Note, too, that of course insurers use statistics all the time to generalize about the riskiness
of certain groups. Even if a teenage boy is, himself, incredibly cautious, and even if detailed
inquiry into his behavior would produce a low risk assessment, he will nevertheless almost
certainly face a higher insurance premium than a middle aged woman. Professor Frederick
Schauer argues that the stereotype of teenage boys being riskier drivers is a “nonspurious”
generalization—i.e., there is sound empirical evidence that a higher percentage of teenage boys
drive recklessly than other groups—and therefore should be fair to rely on as insurance companies
evaluate premiums and risk. FREDERICK SCHAUER, PROFILES, PROBABILITIES & STEREOTYPES, 15
(2003). Schauer goes on to argue that empirically sound generalizations are often superior ways
to organize decision-making than the particularized evaluations defended by Professor Tribe. Not
only might a generalized decision-making regime make fewer errors in the long run, it may also
“serve other important goals and embody other important values,” such as efficiency and
objectivity. Id. at 24.
While the teenage driver example of the use of the “reasonable person” may seem
acceptable, what about charging homebuyers a higher interest rate on their mortgage because their
buyers in their low-income neighborhood are statistically more likely to default?
2. Burdens of production, burdens of persuasion. The burden of proof consists of the burden
of production and the burden of persuasion. The burden of production requires a party, initially
the plaintiff, to produce “sufficient evidence to support a finding in favor of that [party].” Bruner
v. Office of Pers. Mgmt., 996 F.2d 290, 293 (Fed. Cir. 1993). Once the plaintiff has met her
burden of production, the defendant may be required to offer evidence showing otherwise or
calling into question a material fact lest the defendant be defeated by a motion for summary
judgment. Id. Not all prima facie cases by the plaintiff—cases presenting sufficient evidence to
support a finding in the plaintiff’s favor—will support a plaintiff’s summary judgment motion
absent evidence offered by the defendant. But some will. And in this sense, although the burden
of production starts with the plaintiff, we can think of it as shifting back and forth during a
proceeding whenever either party develops evidence that would require a reasonable trier of fact
to find for that party absent an additional showing of contrary evidence. The burden of
persuasion, by contrast, generally “rests with one party throughout the case.” Rivera v. Philip
Morris, Inc., 209 P.3d 271, 275 (Nev. 2009). To meet the burden of persuasion, a party must
“produce sufficient evidence to convince a judge that a fact has been established.” Id. In civil
cases, the threshold is a preponderance of the evidence. The party bearing the burden of
persuasion, typically the plaintiff, at least as to the prima facie case, bears the risk that the
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