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In numerous claims that arise from injuries or accidents, the foundation for holding an individual legally accountable for any ensuing damage or harm originates from a theory called negligence. Under the negligence law, a person is held “negligent” or “careless” if they fail to exercise ordinary care to prevent harm to other people or their property. Under this rule, liability is premised upon the principle of fault, which takes the form of negligence or the intention to injure another person. To numerous modern minds, a fault is the natural standing of liability, hence it is morally right that an individual who injures another via fault must compensate them. The moral basis for this principle, however, is disputed. The ultimate purpose of negligence law is to redress a kind of moral wrong. In this paper, I will assert that this objective is not achieved in many cases because of the flaws in its breach of duty element, which make it possible to forgive negligence but impose negligence liability on acts or omissions that are not morally wrong.

As with all legal claims, negligence comprises various identifiable elements that draw together a group of interrelated issues for both analysis and resolution. The first element is duty. The first step in the assessment of a claim of negligence is to determine whether the accused owed the complainant a legal duty of care. As noted by Owen (2006), the relationship between the plaintiff and the respondent may in some circumstances create a legal duty. In other circumstances, the accused owes the complainant a legal duty to act in a reasonably careful manner in a certain occurrence. The second component is the breach of duty. After determining whether there exists evidence of legal duty of care, the next thing that is done by the court is to define whether the defendant broke the duty by doing or failing to do something that a person who is reasonably prudent would or would not do given the same circumstances.

The next element is causation, and it calls for the complainant to validate the claim that the offender’s carelessness indeed resulted in their injury. Even though a person may be acting carelessly, the plaintiff can only recover if this negligence causes the injury in some way. The fourth and final component is harm or damages, and it entails the harm or damage suffered by the plaintiff as a proximate outcome of the accused’s breach of duty. Requiring the harm-doer to compensate the plaintiff for the damage that they have improperly inflicted on them is the underlying restitution as well as deterrent goal of the negligence law. In other words, as much as money damages can bring about deterrent objectives, the law requires the negligent person to restore the plaintiff’s loss as a proximate effect of their wrong.

A well-known case that can be used to illustrate how the law of negligence works is that of Donoghue v Stevenson [1932] AC 562, normally referred to as the Paisley Snail case. The case is famously known as the source or origin of the tort of negligence. Here, a shop assistant from Scotland named May Donoghue had been drinking ginger beer from a bottle when she found a slug inside. Following this, she became ill. A friend had ordered the beer for her, so she could not sue the owner of the café in a contract because she had not purchased the beer herself. A Glasgow lawyer asked her to sue the beer’s maker, David Stevenson, for negligence, arguing that Stevenson owed the people who consumed his products a duty of care. The case was taken to the House of Lords, United Kingdom’s highest civil during that time. Lord Atkin delivered the leading judgment on May 26, 1932, noting that the rule that an individual is required to love his/her neighbor translates to, in law, “do not injure your neighbor” (Ferrari, 1994, p. 84). He went on to state that makers of products ought to take reasonable precautions to escape omissions or acts that can rationally believe would probably harm the user. Following this judgment, Ms. Donoghue was awarded a compensation of £200. From the case, a step by step assessment of the different components of negligence was followed until the matter was resolved. All the above features of negligence law are evident in the case.

The negligence law was aimed at enforcing the idea that people should protect each other’s safety by taking safeguards that a rational person would take to avoid imposing an unreasonable risk of harm to another person. Nonetheless, the key question is: what are these precautions? Economists respond to this question by noting that “a precaution is reasonable when it is rational; a precaution is rational when it is cost-justified; and a precaution is cost-justified when the cost of the precaution is less than the expected injury” (Coleman, Hershovitz, & Mendlow, 2015, para. 20). As such, the rule of negligence has a lot to recommend it from an economic viewpoint. Specifically, it encourages all rational people, both harm-doers and victims, to take all as well as only cost-justified precautionary measures. If all probable harm-doers act reasonably, losses will always be borne by the victims. As such, rational victims will always believe that they will be required to bear the costs of accidents. However, they, just like the potential rational injurers, will take all as well as only cost-justified precautionary measures. The rule of negligence, therefore, is economically effective since it creates an optimal risk-taking level (Coleman et al., 2015).

The same, however, cannot be said for the moral response view of the rule of negligence. This is because as noted by Grady (2018), juries in the United States often impose negligence liability on numerous omissions as well as acts that are not wrongs in any moral sense. As such, negligence liability could be best described as a “stochastic tax” and not a moral system. In addition, juries in the United States have the power to forgive even obvious negligence, and habitually exercise this practice. This creates a problem for theories of corrective justice which claim that the negligence law is designed to repair harm.

Part B

As Cane & Atiyah (2013) write, there exists a clear distinction between law and morality, but morality is the ideal standard through which the law can be judged. An analysis of the negligence law, however, shows that the rule diverges from moral principles in numerous aspects. First, the law may make a harm-doer be held legally liable without being morally culpable. As noted by Lunney & Oliphant (2008), it is impossible to justify the fault principle on such practical grounds as the cheapness of operation, speed, and convenience. The traditional justification of the principle is that fault epitomizes a moral principle in that if an individual, by blameworthy behavior, causes loss or harm to another person, the former should pay compensation to the latter. Nonetheless, there is a major way through which a lot of people have questioned whether this law truly represents this moral principle. If the law was truly based on fault, would it not prohibit vicarious liability, liability insurance and various other devices of loss distribution that can lead to the shifting of the burden of paying compensation from the harm-doer to another party who is not at fault? In this regard, a good example to consider is a collective liability. When it is argued that a group, a local authority or a company was at fault, the allegation’s moral content is attenuated. Assuming an organization was sued for failure to guard an employee against danger in the workplace, the real complaint will not be that a specific person at the company was at fault. It will be argued that due to some lack of organization within the company, nobody had the responsibility to anticipate as well as prevent the accident. Overall, therefore, the moral principle of the law will be weakened, and the goal of repairing the harm may not be achieved (Cane & Atiyah, 2013).

Second, the standard account of the U.S. negligence law is inaccurate, hence juries often impose negligence liability on numerous omissions as well as acts that are not wrongs from a moral perspective. Often, the U.S. negligence law utilizes cost-benefit analysis to make upper bound determinations on breach of duty. In particular, a lot of cases are dismissed before they even get to the court, and the court rejects jury verdicts for complainants because the plausible cost for no precautionary measure untaken by the defendant is less than expected benefit by the method of reduced risk. Cost-benefit analysis, however, cannot be utilized in certain types of precaution. There are many “nondurable precautions” that require repetitive use to be effective. Good examples of these are drivers checking their blind spot prior to changing lanes, or a surgeon ensuring that they retrieve the sponges placed in a patient during a surgical procedure. On a one-time basis, these nondurable processes are normally cheap and highly productive of safety, but the cost of perfection involved in the simple tasks can be significant. This is because regardless of the surgeon’s wish to remove all sponges or the driver’s desire to check blind spots, some fails are inevitable in both realms. As such, an important question arises: how would cost-benefit analysis be applied to these precautions? One method would be to judge that on a given occurrence that resulted in the accident, the avoided risk was high, and the cost was low. In this one time method, nonetheless, the high cost of perfect consistency is excluded, which appears to be the parsimonious reason as to why these accidents often take place. Cost-benefit analysis, therefore, is a practical upper bound on “precaution plans” and durable precaution, but it is not entirely an upper bound on precautions that are nondurable. For this reason, a court can judge that a surgeon or a driver is liable even when their error was below average as well as below the estimated efficient limit on “perfection” (Grady, 2018).

Last but not least, juries often forgive or fail to impose negligence liability on obviously negligent acts, thus failing to achieve the purpose of redressing morally wrong acts. As explained by Grady (2018), U.S. juries have a broad discretion to forgive negligence, even when the omission of a precaution that is cost-beneficial is the source of this negligence. This implies that regarding the breach of duty issue, no consistency across matters is mandatory, as long as they act within their general legal limits, which include ample space for making inconsistent decisions. An example of an area in which this practice is common in the area of misfiled precautions. Pharmacists often dispense the wrong drug or the wrong dose. From a long time ago, courts have judged that juries can forgive these errors since they have the power to do so even when the negligent act has resulted in serious harm. The second area in which the act of juries forgiving harmful negligent malpractices is for surgical teams that leave foreign objects inside the body of the patient. A good example is the case of Tams v. Kotz. Here, the surgeon who had left a laparotomy pad inside his patient’s body was forgiven by the juries. The jury also found that the nursing staff was also innocent, and the court determined that the finding of the jury was consistent with the verdict (Grady, 2018).

In summation, the negligence law is always viewed as a representation of the moral principle of reparation of moral wrong in which a harm-doer is required to compensate for the loss or damage they cause to the innocent person. This, however, is not the case because the requirements of the law’s breach of duty element allow juries to forgive negligence acts that can inflict devastating losses on a person. The cost-benefit analysis approach used to establish a breach of duty is flawed, and it may lead to the imposition of a moral liability on a person who is not morally wrong and the granting of forgiveness to someone who has committed a moral wrong. In cases where a harm-doer inflicts “unrepairable” damage on another person, the cost-benefit standard does not require sufficient precaution. The negligence law, therefore, must include more precaution than what is justified by the cost-benefit analysis because harms have a greater moral value when compared to the often monetary benefit that a defendant is required to sacrifice to avoid them. Overall, therefore, the negligence theory is not justifiable as a response of moral wrong. From an economic perspective, however, the law is efficient and justifiable because it produces an optimal level of care by both the plaintiff and the defendant to avoid liability.

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