REASONABLE CARE: EQUALITY FROM BEGINNING TO END

Avihay Dorfman, Tel Aviv University, Faculty of Law

Abstract

The most compelling defense of the standard of reasonable care in negligence law casts itself in terms of equality. According to this view, the law conceives of the parties to a tort interaction as equals, since it fixes the contours of reasonableness by reference to what any reasonable person ought to do under the circumstances, irrespective of the competency, trait, or good-will of the actual parties. This commitment to equality may paradoxically turn out to be flatly inegalitarian. This is because it discriminates against the less capable through ignoring their deficient capabilities (and so against their chances of meeting the standard of reasonable care successfully). The standard way out of this embarrassment takes the form of exempting certain classes of incompetency from the demands of reasonable care. However, this strategy of rescuing equality through exclusion is straightforwardly unattractive. A more promising, though still unfamiliar, way to revive the egalitarian aspirations of reasonable care would be to show that imposing the standard of reasonable care even on the less competent expresses, rather than inhibits, a true devotion to equality. I seek to make this showing, and thus to reclaim for this standard of care its egalitarian foundations more adequately than has so far been possible. My account establishes that an important feature of what it means to be treated as equals by the law is the recognition of tort-feasors as duty-bound, as persons who are equally accountable for their failure to meet the requirement of appropriate conduct expected from all (here, exercising reasonable care). Moreover, this recognitional aspect of equality, I argue, is no mere formal ideal. Rather, it requires the integration of private law’s traditional norms of respect for the moral equality of each person with public law’s substantial efforts at ameliorating inequalities. Finally, this novel approach generates important insights into the practice of reasonable care in common law negligence, settling certain unresolved doctrinal difficulties. Among other things, it explains on grounds of equality the widely neglected distinction between the standards of care applicable to physically disabled tort-feasors, on the one hand, and tort-victims, on the other.