Cost-Benefit Analysis and the Negligence Standard

In his commentary on the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ( Discussion Draft ), Stephen Gilles does an excellent job of analyzing the role of cost- benefit analysis in the characterization of reasonable care in previous restatements, and also of tracing the relationship between that characterization and contemporaneous scholarly work. This is a necessary prelude to any attempt to reformulate the content of the negligence standard in a Restatement (Third), and I think that Gilles\u27 work will prove to be exceptionally helpful in that regard. Given the limited space I have available for my own comments, however, I intend to focus, somewhat more narrowly, on the Discussion Draft itself, and on Gilles\u27 direct critique of some of its provisions. Let me begin with the proposed definition of negligence in Section 4 of the Discussion Draft. An actor is negligent, we are told, if he or she does not exercise reasonable care under all the circumstances. The Section then goes on to state the following: Primary factors to consider in ascertaining whether conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden that would be borne by the actor and others if the actor takes precautions that eliminate or reduce the possibility of harm. As Gilles points out, these are essentially the factors that figure in the Learned Hand formula and, indeed, in the understanding of reasonable care that informs the Restatements (First) and (Second). As Gilles further points out, the Discussion Draft differs from the first two Restatements in that it does not make either the Hand factors, or the Learned Hand formula itself, subordinate in any way to the traditional concept of the reasonable person. Rather, the Discussion Draft drops the reasonable person from the main text and mentions the idea only in passing, in the comments