Tort doctrine states that breach is all about conduct. Unlike in the criminal law context, where jurors must engage in amateur mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at the defendant’s external behavior. But this is false. Here I explain why, by incorporating the psychology of foresight. Foreseeability is at the heart of negligence—appearing as the primary test for duty, breach, and proximate cause. And yet, it has been called a “vexing morass” and a “malleable standard” because it is so poorly understood. This Article refines and advances the construct of foresight by describing it as an epistemic mental state—similar to intent, knowledge, or recklessness. We cannot ask whether a defendant should have foreseen a risk without interrogating what they subjectively perceived, realized, or remembered at the time. Indeed, the focus on actions in negligence is misleading because unreasonable actions are not necessary for negligence liability, while a negligent mental state is. It is time for negligence doctrine to “mind” accidents. Unfortunately, when we assume that foreseeability can be assessed objectively through conduct, jurors are left rudderless to engage in hindsight bias. The phrasing of “objectively reasonable foreseeability” encourages jurors to superimpose what should have been foreseen ex post on what could have been foreseen ex ante. Further, while the outputs of mental states may be labeled reasonable or unreasonable, some of the underlying mental states themselves cannot be. There is no such thing as “objectively reasonable memory” or “objectively reasonable perception.” If we are committed to basing negligence on breach, we must pay more attention to whether a particular defendant is capable of foresight. This is not about eliminating the reasonable person standard, but rather recognizing that what is reasonable is constrained by what is possible. Given these insights, I propose significant revisions to negligence doctrine. I reshuffle and simplify the prima facie elements to focus the jury’s attention on the descriptive aspects of breach (i.e., whether foresight and prevention were possible in this instance) and the judge’s attention on the normative aspects (whether there should be duties imposed in cases like this and whether this particular defendant should be held responsible). This proposal aims to decrease hindsight bias by requiring an assessment of the defendant’s capacity for foresight before asking whether the outputs of this mental process were reasonable. My proposal brings to the surface processes that are already occurring. It has the added benefit of distinguishing the tests for duty, breach, and proximate cause, which at present overlap considerably. Because breach, proximate cause, and duty all ask whether the outcome was reasonably foreseeable, courts frequently conflate the breach analysis (which should be for the jury) with that of duty (for the judge). My proposal eliminates this confusion by defining descriptive elements that are uniquely for the jury and normative elements that are uniquely for the judge.
Teneille R. Brown,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol94/iss1/3