Reinterpreting Reasonable Precaution: A Reply to Barbara Fried

Abstract

This Article offers a new answer to a hotly-debated question in legal theory, one that has important implications for accident law. When a firm engages in a socially beneficial activity that exposes workers, consumers, or bystanders to a risk of death or serious bodily harm — e.g., building a skyscraper, manufacturing prescription drugs, or operating a nuclear power plant — what level of precaution is the firm morally required to exercise? How, in other words, should the reasonable level of precaution be determined in a case of this type? In a series of provocative essays, Professor Barbara Fried has recently argued that standard cost-benefit analysis represents the “only game in town” when it comes to answering this question. Though cost-benefit analysis’s reliance on interpersonal aggregation — its summing of costs and benefits across individuals — has long been faulted for failing to respect the separateness of persons, Fried contends that there is simply no workable alternative for sorting permissible practices of risk imposition from impermissible ones. Responding to Fried’s challenge, this Article introduces a new interpretation of reasonable precaution — the individualized feasibility principle — that focuses on costs and risks to each affected individual, rather than on costs and risks considered in the aggregate. This principle holds that, when engaging in a significantly risky but socially beneficial activity, an actor is morally obligated to invest in safety precaution until the lesser of the following two points is reached: (i) the point at which further expenditure on safety would threaten the long-term survival of the activity; or (ii) the point at which further expenditure would reduce the well-being of each person responsible for bearing precaution costs by more than it would increase the expected well-being of each person exposed to the risk. Because it does a better job of accommodating widely-held intuitions in important types of cases, the individualized feasibility principle deserves to be considered alongside aggregative standards in the ongoing quest for a comprehensive theory of reasonable precaution.