Academic journal article Vanderbilt Law Review

The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values

Academic journal article Vanderbilt Law Review

The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values

Article excerpt

The definition of negligence in the draft Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") employs a version of the Learned Hand formula. According to the chief Reporter, Professor Gary Schwartz, who is responsible for this draft, the Hand formula can accommodate both economic and fairness accounts of negligence law.

Is he correct? I will argue that he is, and that the Hand formula, suitably defined and explained, is indeed an appropriate general criterion for negligence. At the same time, however, the current Discussion Draft is deficient in some respects. It does not adequately allay the fears of those who worry that the Hand formula will inevitably receive a narrow economic interpretation. It should more clearly underscore that negligence is a species of fault. And it should clarify the unavoidable value judgments inherent in a negligence determination, value judgments that are no less necessary or desirable when the Hand formula is employed to make that determination. At the end of this Paper, I suggest some specific Restatement language that might remedy these deficiencies.


Section 4 of the Discussion Draft defines "negligent" in terms of the Learned Hand factors:1

An actor is negligent in engaging in conduct if the actor does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden that would be borne by the actor and others if the actor takes precautions that eliminate or reduce the possibility of harm.2

According to the comments that immediately follow, the Reporter intended this definition to have the same meaning as a "reasonably careful person" test.3 Moreover, the definition is meant to have some flexibility: while the listed "primary" factors explain the content of reasonable care in "the typical case," sometimes other "considerations or circumstances" will "supplement or somewhat subordinate the primary factors."4 Examples where this may occur include emergencies, actors who are children, actors with disabilities, and inadvertent negligence.5

The Discussion Draft offers a catholic and nondogmatic characterization of the Hand test, suggesting that "risk-benefit," "cost-benefit," and "balancing" are all acceptable descriptions because they all express the "simple idea" that "[c]onduct is negligent if its disadvantages exceed its advantages."6 So stated, this "simple idea" verges on the vacuous.7 But the Discussion Draft goes on to explain that "disadvantages" encompass the foreseeable likelihood and severity of harm, while "advantages" means the avoided burdens of risk prevention (i.e., burdens that would be incurred if the actor did take a precaution against the risk of harm). Moreover, those burdens "can take a wide variety of forms," including: financial burdens, delays experienced by motorists' reducing their speed, inconvenience, inability to satisfy a friend's need (for example, if one declines to lend a car to a friend who is a bad driver), and the possible creation of new risks of injury.8

Other comments helpfully explain the following points:

(a) All three primary factors are relevant to the question whether the actor is negligent. Thus, it can be negligent to create even a low-level risk (where the probability of injury is low, or where the injury if it occurs will not be severe), and reasonable to create even a high-level risk.9

(b) Determining whether the actor should have "reasonably foreseen" a risk sometimes requires a balancing of factors (namely, the advantages and disadvantages of gathering information) similar to the balancing that the negligence test itself entails.10

(c) The decisionmaker should consider all foreseeable harms that a precaution would minimize, and not just the type of harm suffered by the plaintiff. …

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