This Article evaluates the provisions in the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") addressing the element of "breach" in the tort of negligence-that is, the provisions that explicate the substantive content of the negligence standard. In light of the continuing debate among tort theorists over the best understanding of negligence, the Discussion Draft's take on negligence is a matter of some importance within the legal academy. Whether it is a matter of much practical importance may be doubted. Under settled American practice, the jury applies the negligence standard to the facts it finds, and renders only a general verdict that does not explain or justify the outcome. Together with the rules effectively limiting judicial review of jury verdicts to cases of manifest error, these features of trial practice ensure that the operational meaning of negligence is largely determined by juries in particular cases, rather than by the doctrines stated in appellate decisions (and restated in Restatements of Torts). Even if these practices are misguided, it is clear that no Restatement could repudiate them without drastically departing from the American Law Institute's ("ALI") traditional position that Restatements are predominantly positive and only incrementally normative.
On the other hand, the conception of negligence articulated in the Restatement (First) of Torts ("Restatement (First)") - which was carried over virtually unchanged into the Restatement (Second) of Torts ("Restatement (Second)"), and hence has defined the ALI's position for almost seventy years-has had an important influence on the black letter law, on appellate review of jury verdicts, and on directed verdict practice in the trial courts.1 Moreover, one might reasonably expect that courts will rely on the Discussion Drafts provisions in choosing jury instructions in negligence cases. This expectation, however, is undercut by the large gap between contemporary pattern jury instructions, which typically tell the jury to apply the reasonable person standard without explaining or defining it, and the Restatement and appellate cases, which typically interpret negligence in cost-benefit terms. Experience thus suggests that the Discussion Draft will have little impact on the negligence instructions juries receive. That may depend, though, on how aggressive the Discussion Draft is in recommending that courts instruct juries in accord with its formulations. In due course, I will explore what the Reporter, Gary Schwartz, has done on this score, and argue that it would be appropriate to do more.
In very general terms, it is evident that the Discussion Draft-like its Restatement predecessors-endorses a version of cost-benefit balancing as a central part of determining negligence. Some torts scholars have argued that cost-benefit negligence is a distortion of the traditional (and, they argue, normatively superior) reasonable person standard.2 Were the Discussion Draft to adopt that view, it would jettison the Restatement (First)'s risk-utility test and simply rely on the reasonable person standard. Yet it would be an extraordinary development, to say the least, for the Discussion Draft to repudiate a major and at least moderately influential feature (risk-utility analysis) of the Restatements (First) and (Second). Beyond that, as Gary Schwartz ably shows in the Reporter's notes on Section 4 of the Discussion Draft, the Hand Formula balancing approach is recognized as authoritative by judicial opinions in a majority of states, by the leading torts treatises, and by most contemporary torts scholars. And while there is certainly still room for argument about how strongly the courts are committed to Hand Formula balancing, Schwartz rightly points out that there is no American jurisdiction "whose cases explicitly (or by clear implication) reject the balancing approach as an interpretation of the negligence standard. …