Simons on Nonconsequentialist Accounts of Negligence

Ken Simons has posted his contribution to A Research Agenda for Torts (Bublick & Goldberg, eds.) (forthcoming 2025).  Entitled, Exploring Nonconsequentialist Accounts of Negligence and Risky Tradeoffs, the abstract provides:

Negligence doctrine dominates tort law, yet its scope and underlying justification remain contested. One of the most controversial questions is the propriety of employing the Learned Hand test as a criterion of reasonable care or ordinary prudence. Is it helpful, or even essential, to evaluate whether the actor’s burden of taking a precaution (B) is less than the probability of the harm that the precaution would avoid (P) multiplied by the severity of that harm (L)?

The debate about the Hand test is really a debate about more fundamental issues. Does a determination of negligence depend on whether the actor failed to make the proper tradeoff of the advantages and disadvantages of taking a precaution? Is that tradeoff best understood in either narrow economic or broadly utilitarian terms? Or instead in nonconsequentialist or deontological terms?

Suppose the owner of a baseball stadium is deciding how much protection she must provide to spectators at risk of injury from baseballs. Should she simply compare the costs and benefits of more extensive netting? Suppose she is deciding how much protection to offer to bystanders outside the stadium who are at risk but who receive no benefit from the game. Should she now put a thumb on the scale, and thus invest in greater safety precautions than cost-benefit analysis would require? A nonconsequentialist can give an affirmative answer, while a consequentialist cannot.

This chapter will review some of the most illuminating proposals that legal scholars have offered on this topic. But there is a parallel debate in moral philosophy about risky tradeoffs. Fuller understanding of the philosophical literature should be helpful to scholars and practitioners of tort law who try to explain and justify negligence doctrine.

Section IIA of the chapter introduces the Hand test and how it has been understood in case law and legal commentary, while IIB explores alternative conceptions of the test, including both consequentialist and nonconsequentialist variants. Section III reviews an important philosophical literature that addresses, from a nonconsequentialist perspective, what tradeoffs are permissible when actors must choose between alternative courses of action. The discussion first explores tradeoff scenarios in a “certain” world, i.e., when the actor is certain about the results or the circumstances, and then addresses tradeoffs in an “uncertain” world, i.e., when there is a risk but not a certainty that the result will occur or the circumstance will obtain. Section IV considers implications of the analysis.  Subpart A argues that for actors facing risks, the value of the abstract analysis of permissible risk is indirect, because that analysis provides a criterion of permissible conduct, not a concrete decision-procedure. Subpart B identifies implications of the analysis for the standards that should govern autonomous technology and artificial intelligence. Subpart C discusses the value of empirical analysis of the issues addressed in the chapter.