The Democratic Standard of Care in Tort Law

Social life is inherently risky. Who should bear the costs of accidental harm? That issue has been traditionally addressed in tort legal doctrine under the concept of breach of the negligence standard of care. Trial courts provide juries with instructions that, put roughly, direct the jury to decide whether the defendant’s conduct fell below what a reasonably prudent person would have done if in the defendant’s circumstances. Without further judicial direction on that issue, the jury effectively has excessive discretion in rendering a verdict. Such discretion, opens the door for at least two kinds of potential injustice. Juries could treat like cases differently, and juries can easily ignore or fail to give due consideration to a society’s diverse, irreconcilable, and competing conceptions of the good as to what constitutes reasonable prudence. To mitigate such, I have created “democratic standard theory.” I claim that a theory based on the overarching moral and political commitments of the Kantian tradition can only specify what constitutes negligent breach if it incorporates, as facts, the actual values of the individuals subject to the risk at issue. Since individuals’ comprehensive conceptions of the good conflict, majority rule, constrained by constitutional essentials, should determine what constitutes breach of the negligence standard of care. Thus, in each dispute over negligence in tort, democratic standard theory sets the stakes of negligent risk, especially the costs of accidental harm, in accordance with the values of as many as possible of the individuals locally affected by the particular kind of act at issue