The Fault of Not Knowing: A Comment

Abstract

In a recent paper, George Fletcher points out a surface anomaly in tort system's adherence to a standard (under banner of negligence), and its correlative refusal to excuse, under ordinary circumstances, individual who in good faith attempts to exercise reasonable care but simply falls short of mark. If an actor injures another through inadvertence, Fletcher observes, situation appears on its face to be one in which tort, in guise of negligence and contrary to its grounding in fault, is assigning liability in absence of personal culpability. The objective standard universally recognized in obeisance to the reasonable person seems to weave a strand of strict liability into tapestry of negligence. The central theme in Fletcher's paper is to show how negligence, in sense of the of not remains centered on a foundation of personal blameworthiness, despite its surface appearance of adhering to an external standard of conduct that risk-imposing individual may be incapable of satisfying. In this comment, I begin by indicating where I find common ground with Fletcher. In fact, I will suggest that his fault of not knowing rests on a well-established notion of role of custom in tort law. But I then indicate through discussion of leading tort scholarship and cases that his broader thesis - that once acknowledging of not knowing, negligence can be squared with personal blameworthiness - cannot withstand sustained analysis. In a final section, I open inquiry still further by briefly commenting on constraining effect of addressing problem of remedies for accidental harm exclusively in terms of and strict liability.