BOSTON UNIVERSITY
SCHOOL OF LAW
RESEARCH PAPER SERIES, PUBLIC LAW & LEGAL THEORY
RESEARCH PAPER NO. 02-12
DIMENSIONS OF NEGLIGENCE IN CRIMINAL AND TORT LAW
KENNETH W. SIMONS
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Dimensions of Negligence in Criminal and Tort Law
by
Kenneth W. Simons
*
September 10, 2001
I. Introduction ...............................................................................................................2
II. The standard tort conception of negligence: unreasonably risky conduct .................4
III. The modern criminal law conception of negligence: unreasonable inadvertence and
unreasonable mistake.......................................................................................................6
IV. Comparing the standard tort and modern criminal law conceptions........................10
V. A more complete picture of negligence in tort and criminal law...............................14
A. When criminal law employs a conduct conception of negligence....................14
B. When tort law employs a cognitive conception of negligence .........................19
C. Other varieties of negligence...........................................................................22
VI. Distinct legal functions of the negligence concept...................................................27
A. Express the legal norm in the form of a standard rather than a rule ...............28
B. Personify fault..................................................................................................33
C. Empower the trier of fact to give content to the legal standard .......................39
D. Create a secondary legal norm parasitic on a primary legal norm ..................41
E. Distinguish grades of fault ...............................................................................46
VII. Conclusion...............................................................................................................54
*
M.L. Sykes Scholar and Professor of Law, Boston University School of Law. Prepared
for the Cegla Law Instute for Comparative and Private International Law, Conference on
Negligence in the Law, June 2001. Copyright ? 2001. All rights reserved. I thank Yishai
Blank, Greg Keating, Gerald Leonard, Michael Moore, Ariel Porat, and Paul Robinson, as
well as other participants at the conference, for their helpful suggestions. Gaston de los
Reyes provided excellent research assistance as well as editorial advice.
I. Introduction
The law frequently employs a concept of “negligence.” What does the
concept mean?
This question can be explored from many perspectives. One perspective
analyzes different ways of articulating the content of the standard—as a cost-
benefit balance, or a judgment about “community values,” or a version of the
Golden Rule. Another, related perspective considers the normative foundations
of a negligence requirement—as a utilitarian metric of personal fault, as an
economic rule designed to induce optimal precautions, as a norm of fairness, or
as a type of fault subject to retributive blame or to a corrective justice duty of
repair.
1
In this essay, I take a somewhat different perspective. What specific
conceptions of negligence are recognized in the law? How do these conceptions
relate to one another? And why does the law employ these varying conceptions?
To illustrate some of the distinctions I have in mind, consider the following
propositions:
(A) Alon, through his dangerous driving, negligently creates an unreasonable
risk of physical injury to Virgil.
(B) Boris, through his dangerous driving, negligently causes physical injury to
Virgil.
(C) Claude negligently fails to foresee the risk of physical injury to Virgil.
(D) David negligently drives his car.
(E) Edna, a surgeon, performs an operation during which her hand slips,
negligently causing physical injury to Virgil.
1
For some thoughts on these issues, see Kenneth W. Simons, Negligence, 16 Soc. Phil.
& Pol. 52 (1999); Kenneth W. Simons, The Hand Formula in the Draft Restatement
(Third) of Torts: Encompassing Fairness As Well as Efficiency Values, 54 Vand. L. Rev.
901 (2001).
Page 2 of 57 Simons, Dimensions of Negligence 8/7/02
(F) Frank has sexual relations with Violet and makes a negligent mistake
about her age, believing that she is eighteen when she is actually fifteen.
(G) George has sexual relations with Violet and is negligently inadvertent to
her age: he forms no belief about her age and fails to realize that she is
actually fifteen.
(H) Harriet, in using deadly force against Vanna, negligently fails to realize
that Vanna is not threatening Harriet with deadly force.
(I) Irma, in using deadly force against Vanna, lacks any definite beliefs about
the severity of Vanna’s threat, but negligently fails to control her impulse
to respond to Vanna’s attack with deadly force.
Now consider the following questions.
? Is Claude’s failure to foresee the risk of injury sufficient to show that
he is negligent in the same sense as Alon or Boris?
? More generally: Are the conceptions of negligent inadvertence (e.g.
Claude, George) and negligent mistake (e.g., Frank) essentially the
same as the conception of negligent risk-creation (e.g., Alon, Boris)?
If not, how do they differ?
? Is the category of deficient skill (e.g. Edna) an instance of negligent
risk-creation, or of negligent inadvertence or negligent mistake? Or is
it a separate category altogether?
? Compare David (above) with two new characters—Donna, who
“knowingly drives her car,” and Delbert, who “purposely drives his
car.” Normally, knowledge and purpose are considered more serious
forms of culpability than negligence. Yet David is conclusively at fault,
while Donna and Delbert are not. What explains this paradox?
? Is negligent lack of self-control (e.g. Irma) a coherent form of
negligence?
In this essay, I will explore these questions, and others, concerning
different dimensions or categories of negligence. The next section of the essay
analyzes the standard tort conception of negligence as unreasonably risky
conduct. The following section evaluates the modern criminal law conception of
Page 3 of 57 Simons, Dimensions of Negligence 8/7/02
negligence as negligent inadvertence or negligent mistake. Subsequent sections
compare the tort conduct conception and the criminal law cognitive conception,
and also introduce other varieties of negligence. Then, stepping back from these
conceptions, I examine carefully five different functions that a legal negligence
standard might serve. A conclusion identifies some misconceptions that the
analysis refutes, and offers some final conjectures about whether, and how,
different views of the content and normative underpinnings of negligence would
affect the analysis.
I believe that the comparative treatment of different conceptions of
negligence can be quite illuminating, especially to scholars and judges familiar
with tort doctrine but unfamiliar with criminal law, and vice versa. But the proof is
in the pudding…
II. The standard tort conception of negligence: unreasonably risky
conduct
Let us begin with what might be called the “standard” conception of
negligence employed in tort law. Under this conception, negligence consists in
creating an unreasonable risk of physical harm to another, a risk that the actor
could and should have prevented by taking a precaution. The actor is
considered to be at fault for not taking the precaution, although his fault is
understood to be less serious than the fault of an actor who creates the risk of
harm intending that the harm occur or believing that that harm is likely.
2
2
See Draft Restatement (Third) of the Law, Torts: Liability for Physical Harm, Tent. Draft
No. 1 (March 28, 2001), §1, comments a, d [hereinafter, Draft Restatement (Third) of
Torts]. The “intentional” or “knowing” actor would be liable for a battery. Although
damages for intentional torts and for torts of negligence are usually the same, the
character of a tort as intentional rather than negligent makes punitive damages more
readily available, often lessens the effect of victim fault under comparative fault
principles, and might relax the rules of proximate cause. Id., §5, comment a.
However, we will see that the tort culpability hierarchy is more complex than the
text implies, for a battery does not require intent to cause harm. See text at notes 113-
117= infra.
Page 4 of 57 Simons, Dimensions of Negligence 8/7/02
On the standard conception, the primary fault underlying a negligence
claim is the actor’s failure to take a reasonable precaution against the risk of
harm. To be sure, tort law demands compensation for negligently-caused harm,
and normally does not provide a remedy for negligence unless the negligence
results in harm. Still, it is the negligent act that determines the actor’s fault. In
other words, the state of affairs in which the negligent act does not occur is
clearly preferable to that in which the actor negligently causes harm but pays
compensation.
3
The determination that an actor is negligent is made from an ex ante
perspective, considering the foreseeable risks from the actor’s conduct and the
foreseeable benefits (in the form of risk-reduction) from the actor’s taking a
precaution. Negligence depends on foresight, not hindsight; on the reasonably
apparent state of the world at the time of the action at issue, not on the actual
state of the world at that time. Moreover, although negligence necessarily
involves risk-creation,
4
negligence might or might not cause harm.
The standard conception treats negligence as an evaluative criterion, and
as a conclusive judgment of fault. If an actor is negligent, then he should have
acted differently. By creating an “unreasonable” risk of harm, or failing to take a
“reasonable” precaution against harm, he is necessarily unjustified in acting as
he did. And if harm follows, he will be liable in damages. By contrast,
“knowingly” or “intentionally” creating a risk of harm, even a very high risk of
harm, need not be an unjustified act. (Intentionally or knowingly harming a
person can be justified by self-defense, for example.) Put differently, lack of
3
See Simons, The Hand Formula, supra note 1=, at 905. Accordingly, negligence liability
(even in tort law) is best understood as a property rule, not a liability rule, insofar as the
tortfeasor is not deemed entitled to cause harm so long as he pays. See Guido Calabresi
& A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of
the Cathedral, 85 Harv. L. Rev. 1089 (1972). Similarly, tort liability for negligence is
better viewed as a sanction, not a price. Robert Cooter, Prices and Sanctions, 84 Colum.
L. Rev. 1523, 1538 (1984).
4
A qualification: actors are sometimes liable for negligent omissions even when they
have not created the risk of harm. (Consider parents’ duties with respect to their
children’s health and safety.) In such cases, the actor has a duty to use reasonable care
to reduce the risk of harm.
Page 5 of 57 Simons, Dimensions of Negligence 8/7/02
justification is built into the very concept of negligence; but it is not part of the
concept of knowingly or intentionally harming another.
In principle, one could break down the analysis of unjustifiable risk-
creation into two issues—(1) the significance of the risk created; and (2) the
justifiability of creating that risk (which we might also characterize as the burden
of taking a precaution against that risk). The law could then explicitly develop a
range of standards: creating a trivial risk of a trivial harm requires only a slight
justification; creating a more significant risk of a trivial harm requires a more
weighty justification; creating a significant risk of a more significant harm requires
an even more weighty justification; and so forth. But the tort conception of
negligence instead ordinarily employs a single standard, with a sliding scale: the
justification for imposing a risk must ordinarily be weightier as the probability and
severity of the harm risked increases.
5
Only when the significance of the risk
reaches a relatively high level, and the actor is aware of a relatively high level of
risk or intends to cause harm, does the “sliding-scale” negligence test give way to
the qualitatively different standards for reckless and intentional torts.
6
III. The modern criminal law conception of negligence: unreasonable
inadvertence and unreasonable mistake
Although the standard tort conception understands negligence as
unreasonably unsafe conduct, modern criminal law emphasizes a different,
cognitive conception of negligence—namely, the actor’s unreasonable
inadvertence or unreasonable mistake. Criminal law employs other conceptions
of negligence as well, but it will prove useful to characterize this cognitive
conception as “the” modern criminal law conception before introducing further
complexity.
7
5
See Simons, Negligence, supra note 1=, at 56-57; Dan Dobbs, The Law of Torts §§26,
27 (2000).
6
See Draft Restatement (Third) of Torts, supra note 2=, §§1, 2.
7
I describe this as the “modern” criminal law conception because the influential Model
Penal Code emphasizes this conception. Traditional criminal law doctrine, by contrast,
does not employ or emphasize any single conception of negligence. Instead, it contains
a variety of doctrines that could be broadly classified as involving negligence—including
Page 6 of 57 Simons, Dimensions of Negligence 8/7/02
Cognitive negligence, or negligence in relation to beliefs, has two basic
forms. An actor might be unreasonably ignorant or inadvertent in failing to form
any belief about a relevant matter, when he should have formed a belief.
(Consider George above.
8
) Or the actor might form a definite belief, but that
belief might be unreasonably mistaken. (Consider Frank, above.) I will use the
term “cognitive negligence” for both negligent inadvertence (when the actor
unreasonably fails to advert to a risk or to an existing fact) and negligent mistake
(when the actor forms the unreasonable and incorrect belief that the risk or fact
does not exist). In either case, the actor is negligent for not forming a belief that
he reasonably should have formed.
9
The highly influential Model Penal Code emphasizes a cognitive
conception of negligence.
10
Under the Code, negligence is the least “culpable”
category of four “culpability” terms. In order of increasing “culpability,” with
higher punishment potentially warranted for each increment, the categories are
negligence, recklessness, knowledge, and purpose. In essence, a negligent
general intent, mistake of fact, the mens rea for manslaughter, and objective
requirements of self-defense.
8
Or consider Claude: suppose he switched lanes on a highway without considering the
possibility that someone was in his blind spot, and thus without realizing that his action
posed a substantial risk of harm.
9
”Inadvertence” and “mistake” are two basic categories of cognitive deficiency, i.e., of the
actor failing to form a belief that he should have formed. But other categories also exist,
such as agnosticism. See Simons, Rethinking Mental States, 72 B.U. L. Rev. 463, 540
(1992).
10
The Israeli Criminal Code appears to be similar in this respect:
Negligence means unawareness of the nature of the act, of the existence of the
circumstances or of the possibility of consequences of the act being brought
about, such nature, circumstances and consequences being ingredients of the
offence, when a reasonable person could, in the circumstances of the case, have
been aware of it …
Israeli Penal Code §21(a) (1995) (unauthorized English translation), reported at 30 Israel
L. Rev. 1, 14 (1996). However, a proviso to this section acknowledges a “conduct
negligence” requirement as well:
Provided that – … (b) the possibility of the consequences being brought is not a
reasonable risk.
Page 7 of 57 Simons, Dimensions of Negligence 8/7/02
actor is one who should be aware of an unjustifiable risk
11
; the reckless actor is
aware of an unjustifiable risk but nevertheless takes it; the knowing actor is
aware that a harmful result is practically certain to occur, or that an incriminating
circumstance very probably exists; and the purposeful actor has the conscious
object of achieving the result.
12
Why does the Code largely employ a cognitive conception of negligence?
For two basic reasons. First, the Code drafters wanted to ensure that some form
of “conscious” wrongdoing would normally be required for criminal liability.
Doctrinally, they accomplished this by providing that “recklessness,” rather than
“negligence,” is the presumptive minimum culpability term for every material
element of every crime.
13
Accordingly, recklessness is defined (in part) as
awareness that a harm may ensue or that an incriminating circumstance might
obtain.
14
At the same time, negligence is understood negatively, as a form of
culpability in which the actor lacks such awareness. (Indeed, the only difference
between negligence and recklessness under the Code is this difference in
awareness.
15
) Second, the drafters wanted negligence to fit within a structured
11
Model Penal Code §2.02(2)(d) (ALI 1985) (hereinafter “MPC”). Importantly, however,
the MPC defines criminal negligence as a gross deviation from reasonable conduct; thus,
criminal negligence is a species of what tort law would call “gross” negligence, not
ordinary negligence. Also, MPC negligence presupposes that the actor should have
been aware of a “substantial” risk of harm. I put aside, for purposes of this article, the
interesting question whether this substantiality requirement (common to the MPC
definitions of both negligence and recklessness) should be understand as an
independent requirement, or instead as just an aspect of unjustifiability. See Larry
Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 Cal. L.
Rev. 931, 933-935 (2000).
12
MPC, §2.02(2). Note two qualifications. First, the meaning of these culpability terms
differs somewhat when they pertain to a circumstance element of an offense, rather than
a result element. Second, the MPC strongly disfavors strict criminal liability, or liability in
the absence of any form of culpability. MPC §2.05.
13
MPC, §2.02(3).
14
Specifically, MPC “recklessness” requires that the actor be aware of a substantial risk
of a relevant harm occurring or circumstance existing. MPC, §2.02(2)(c).
15
It need not have been so. Criminal recklessness could be distinguished from criminal
negligence not according to consciousness of risk, but according to the actor’s greater
Page 8 of 57 Simons, Dimensions of Negligence 8/7/02
hierarchy of mental states or culpability terms, under which “higher” forms of
culpability within the hierarchy correspond to more serious crimes. (As we will
later see, however, the cognitive conception only imperfectly achieves either of
these objectives.)
One straightforward example of the role of the cognitive conception in the
Code hierarchy is the law of homicide. Purposely or knowingly causing a death
is murder, the most serious form of homicide; recklessly causing a death is
manslaughter; and negligently causing a death is negligent homicide, the least
serious form of homicide.
16
Thus, if an actor causes death and is grossly
negligent in lacking awareness of a substantial and unjustifiable risk of death, he
has committed negligent homicide.
Similarly, consistent with the Code hierarchy, a legislature could
differentiate three different degrees of rape according to the actor’s culpability
with respect to the critical circumstance element, the victim’s nonconsent. A
defendant who had sexual intercourse with the victim knowing that she did not
consent might, for example, be guilty of first degree rape; a defendant who was
reckless as to her nonconsent might be guilty of second degree rape; and a
defendant who was negligent as to her nonconsent might be guilty of a third
degree. Thus, an actor’s beliefs can be ordered in a hierarchy both when the
indifference to risk or her more seriously culpable reasons for creating an unjustifiable
risk. (One example of the latter approach is the usual doctrinal presumption, even in the
MPC, that an intoxicated actor is legally “reckless” even if he is in fact unaware of the
relevant risk is an example of such a distinction.) Similarly, it is plausible to treat an actor
as “reckless” if she is actually aware of a very slight risk and should have inferred that the
risk was substantial; but the Code apparently would treat such an actor as only negligent,
since she lacks actual awareness of a substantial risk. Insofar as non-Code criminal law
doctrine distinguishes recklessness from negligence, it sometimes uses a criterion other
than awareness of a substantial risk. See Joshua Dressler, Understanding Criminal Law
§10.04[D][3] (3d. ed., LEXIS 2001) (formerly recklessness was on a continuum, together
with criminal negligence and civil negligence, based on degree of risk); id., §10.07[B][3]
(MPC influenced transformation of recklessness-negligence distinction from degree of
risk to awareness); Wayne R. LaFave, Criminal Law §3.7 n. 6 (3rd ed., West 2000)
(recklessness has been distinguished from negligence variously by degree of risk,
awareness of risk, or both).
16
MPC §§210.2, 210.3, 210.4.
Page 9 of 57 Simons, Dimensions of Negligence 8/7/02
beliefs pertain to a result of the actor’s conduct (as in homicide) and also when
they pertain to an attendant circumstance (as in this rape example).
17
IV. Comparing the standard tort and modern criminal law conceptions
It is illuminating to compare the tort and criminal law conceptions. In
several important respects, the conceptions are similar:
(1) Both employ an evaluative rather than descriptive criterion: they ask a
normative question (what the actor should have done or should have believed),
not a factual one (what he actually did, or actually intended, or actually
believed).
18
In this sense, at least, both conceptions are “objective” rather than
“subjective.”
19
By contrast, “knowledge” and “intention” criteria are descriptive.
20
(2) Both employ “reasonableness” or “the reasonable person” as the
evaluative criterion.
21
(3) The evaluation is a conclusive judgment of fault, in the relevant
sense. Negligent conduct is unjustified conduct, or conduct that should, all things
considered, have been otherwise. Negligent ignorance and negligent mistake,
17
Few MPC crimes fully exploit the culpability hierarchy, especially with respect to
circumstance elements. See Douglas Husak, The Sequential Principle of Relative
Culpability, 1 Legal Theory 493, 503-505 (1995).
18
For grading purposes, to be sure, the cognitive conception also asks a factual
question: Was the actor aware of the risk? If so, he is reckless; if not, he is only
negligent.
19
For further discussion of the different senses of “subjective” and “objective” in
connection with negligence, see George P. Fletcher, Basic Concepts of Criminal Law
117-120 (Oxford 1998); see also George P. Fletcher, Rethinking Criminal Law 504-514
(Little, Brown & Co. 1978).
20
Of course, a normative rationale ultimately explains why and when the law employs
such descriptive criteria. But the actual application of the criterion by the factfinder does
not explicitly require normative judgment. (To be sure, this is a matter of degree; a juror
familiar with the consequence of a determination that the actor “intended” to kill will
undoubtedly use her moral judgment, and not just the judge’s instructions defining
“intent,” in making that determination.)
21
However, the “reasonable person” formulation is not a necessary feature of a
negligence standard. See text at notes 69-85= infra.
Page 10 of 57 Simons, Dimensions of Negligence 8/7/02
similarly, are unjustified: all things considered, the actor should have formed a
particular belief, or should not have formed the belief that he did form.
(4) Both conceptions employ the idea of risk, chance or probability.
22
The tort conception considers whether the actor created an unreasonable risk of
future harm, while the criminal law conception considers whether he
unreasonably lacked a belief, as to either a relevant probability of a future harm
occurring (e.g., Claude failing to foresee a significant risk of death) or the
relevant probability of an existing fact (e.g. George failing to appreciate a
significant chance that the victim was underage).
(5) Lastly—and related to the last point—both conceptions permit a
distinction between a risk or possibility of a harm or fact, and that harm occurring
or that fact existing. One can negligently create a risk of harm, and yet not cause
harm. And one can negligently fail to form the belief that a fact exists or that a
result will occur, even though the fact actually does not exist, or the result
actually does not occur.
23
(This conceptual separation permits liability for
inchoate torts or crimes, an implication explored below.
24
)
22
I include “or probability” because the notion of “risk” implies an unwanted or adverse
outcome. See Holly Smith, “Risk,” Encyclopedia of Ethics 1109 (L. Becker and C. Becker
eds. 1992). Accordingly, “risk” is a less apt term for describing beliefs as to existing
circumstances, such as the age of a victim or the status of an assault victim as a police
officer. One can negligently create a “risk” of killing someone, but it might be more
precise to say that one is negligently unaware of the “possibility” or “probability” that a
victim is under the age of eighteen or is a police officer. On the other hand, perhaps
even a circumstance element is an “adverse outcome” in the following sense. Although,
by definition, a circumstance cannot be changed by the actor, the actor’s actual
satisfaction of such an element makes his conduct criminal, and thus the actor should
treat such satisfaction as unwelcome. (The MPC, in defining recklessness and
negligence, employs the term “risk” for both result and circumstance elements. MPC
§2.02(2)(c),(d).)
23
Thus, the following might both be true: (a) George is unreasonable in failing to arrive at
the belief that the victim is underage; but (b) the victim is not underage. (Suppose she
has an unusually immature appearance, and he meets her at a junior high school dance.)
By the same token, one can be unreasonable in forming the affirmative and
exculpatory belief that a fact exists or that a harm will not occur, yet the exculpatory fact
Page 11 of 57 Simons, Dimensions of Negligence 8/7/02
But the tort and criminal law conceptions also differ in some fundamental
ways:
(1) The tort conception focuses on deficient conduct and on the need to
take a precaution against risks of future harm. The criminal law conception
focuses on deficient beliefs, not deficient precaution: one can negligently fail to
believe something without necessarily failing to take a reasonable preventive
measure.
25
Thus, in one sense, the tort conception is wider: it includes both
cases where the actor was unreasonably unaware of the relevant risks and
cases where the actor was fully aware of those risks.
26
(2) The tort conception provides a pervasive standard for behavior
subject to legal liability, for it broadly encompasses any act that negligently
causes physical harm to person or property. The criminal law conception is
interstitial and derivative: it is but one culpability term among many, and its
might actually exist or the harm might actually not occur. (Consider Frank, who is
negligent in believing that the victim is above age; and again, suppose she actually is.)
24
See text at notes 101-103= infra.
25
Put differently, a precaution is conduct that would effectively prevent a risk from
reaching fruition. In the case of negligent beliefs, often the only relevant default is the
actor’s failure to reasonably assess the significance of the information she already
possesses. Characterizing that default as failure to take a “precaution” is a forced
locution at best. Of course, in some cases a faulty belief does indeed consist in a failure
to take a “precaution” in the ordinary sense of the term. If Ford Motor Company
negligently failed to realize that the location of the fuel tank on the Ford Pinto was
dangerous, this default might have been a consequence of failing adequately to research
in advance the possible safety hazards from that design. In other cases, too, the actor
might fail to “give careful attention” to the results of his conduct; and paying close
attention (for example, while driving) is indeed a kind of precaution. Nevertheless, if I am
paying adequate attention and have no opportunity (or no duty) to conduct a further
investigation, my failure to make a reasonable inference from facts at my disposal can be
a negligent mistake without entailing that I have failed to take a reasonable “precaution.”
26
Tort law does employ a concept of recklessness, but it is significantly different, and
usually narrower, than modern criminal law’s conception of recklessness. The latter
conception is simply negligence plus advertence to risk, while the former also might
require both indifference to risk and a greater departure from the standard of care than
negligence requires. See Draft Restatement (Third) of Torts, supra note 2=, §2.
Page 12 of 57 Simons, Dimensions of Negligence 8/7/02
significance depends on the substantive criminal law norm to which it attaches
(homicide, assault, property interests, sexual autonomy, public morals, the
administration of justice, and so forth).
27
Negligence in failing to determine
whether a victim consents to sexual intercourse has a rather different moral
significance than negligence in judging the value of property one is stealing, and
the consequences for criminal punishment are correspondingly quite different.
28
(3) The tort conception endorses an ex ante perspective, while the
criminal law conception, strictly speaking, does not. That is, in tort law the issue
is whether the actor’s conduct was reasonable in light of the risks it created ex
ante, prior to their fruition (or nonfruition) in harm. The criminal law conception
instead asks whether the actor’s belief was reasonable, in light of the information
available to him when he formed the belief. Negligent inadvertence or mistake
need not entail that the actor created (or failed to minimize) an unreasonable risk
of future harm; it need only mean that he lacked adequate grounds for his belief.
To put the matter differently: Although a belief can be reasonable or
unreasonable, and thus can be non-negligent or negligent, the object of such a
belief can be a proposition about the future, about the present, or even about the
past.
29
So the ex ante perspective is not a necessary part of the cognitive
negligence determination.
27
This contrast should not be overstated, however: a pervasive tort negligence standard
applies only to physical injury to person or property, not to exclusively economic or
emotional harms.
28
For further discussion of this point, see text at notes 36-37= infra.
29
This point is most obvious when the belief pertains to an existing fact. If Frank’s belief
as to Violet’s current age is negligent, this does not entail that, ex ante, he is taking an
unreasonable risk of some future consequence that may or may not come to fruition. But
even when the relevant belief pertains to a risk of future harm, the reasonableness of the
belief itself is not evaluated “ex ante” in the relevant sense. Thus, if Claude negligently
failed to appreciate that the dangerous maneuver he was about to undertake would
create a significant risk of death, his cognitive fault consists in his unreasonable failure of
perception or inference, based on information reasonably available at the time that he
formed his belief. (His conduct fault, however, does consist in his creating an ex ante
unreasonable risk of future harm.)
Insofar as the law makes relevant the reasonableness of an actor’s beliefs about
past facts, clearly the reasonableness analysis does not involve an “ex ante” evaluation.
Page 13 of 57 Simons, Dimensions of Negligence 8/7/02
V. A more complete picture of negligence in tort and criminal law
At this point, an impatient reader might wonder: Am I exaggerating the
differences between the conduct and cognitive conceptions? Indeed, am I
unnecessarily multiplying conceptions of negligence, ignoring the fundamental
and core similarities? Would Ockham’s razor come in handy?
Consider the following (superficially) attractive reasons to cut down the
complexity of the analysis. First, in criminal law, often the cognitive negligence
standard is employed, not alone, but in conjunction with a tort-like conception of
negligent conduct. Second, the very meaning of cognitive “negligence” depends
on the legal context; what counts as culpable inadvertence depends on the
nature of the conduct that the actor should have realized he was engaging in, or
the nature of the harm he should have realized he was risking. Third, because
the tort conception incorporates the idea of ex ante risk, it seems to presuppose
a certain kind of cognitive inquiry—the inquiry into whether the risk is “reasonably
foreseeable.”
Each of these points merits more careful attention, for each is valid. In
the end, however, none of them undermines the importance of the fundamental
distinction between cognitive and conduct negligence. Indeed, I must regretfully
report a further conclusion: an even greater profusion of conceptions of
negligence proves useful.
A. When criminal law employs a conduct conception of negligence
Consider first whether the cognitive conception is the only important
conception of negligence employed in criminal law doctrine. Closer examination
reveals that it is not. Rather, criminal law negligence standards often employ the
cognitive conception in conjunction with a tort-like conception of unreasonable,
ex ante unjustifiable, risk-creation. Reconsider negligent homicide liability. Such
liability requires more than that an actor was cognitively negligent, i.e., that he
(Consider the requirement that a police officer have reasonable grounds to believe that
the defendant has committed a crime before arresting the defendant.)
Page 14 of 57 Simons, Dimensions of Negligence 8/7/02
should have realized that he was posing a risk (even a substantial risk) of death
to another. Medical operations, for example, often pose such risks. In addition,
the risk posed (and the failure to take a precaution against the risk) must itself be
unjustifiable.
A more careful analysis of the Model Penal Code definition of negligence
reveals that it often encompasses these two different aspects of negligence. As
explained above, the Code defines a category of unreasonably inadvertent actors
(and contrasts them to advertent, “reckless”
30
actors). But it also implicitly
establishes a standard of care with respect to the actor’s conduct. A negligent
actor is one who “should be aware of a substantial and unjustifiable” risk
(emphasis added).
31
Thus, a negligent actor both (a) creates a substantial and
unjustifiable risk [of death, in the case of homicide], and (b) unreasonably lacks
awareness of that risk.
32
Notice that (a) suggests a tort-like conception of
unreasonable care, while (b) is a cognitive conception of unreasonable
inadvertence.
33
To be more precise, this conduct-plus-cognitive definition applies when
negligence is the “culpability” term applicable to a result element of a crime (such
as the causation of death in the crime of homicide, or the destruction of a building
30
However, recklessness has other important meanings besides advertence. It can also
refer to culpable indifference, or to gross negligence. See Kenneth W. Simons,
Culpability and Retributive Theory: The Problem of Criminal Negligence, 5 J. Contemp. L.
Issues 365, 372 (1994); Simons, Rethinking Mental States, supra note 9=, at 482-490.
For simplicity, in this paper I use the term only in the Model Penal Code sense.
31
MPC §2.02(2)(d).
32
The Code also provides that “[t]he risk must be of such a nature and degree that the
actor’s failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor’s situation.” MPC §2.02(2)(d) (emphasis
added). This language underscores the cognitive orientation of the MPC definition.
Notice the focus on the unreasonableness of the inadvertence, not on the
unreasonableness (in the sense of unjustifiability) of the risk.
33
The commentary to MPC §2.02 explicitly distinguishes these two aspects of
negligence. See MPC §2.02 commentary at 241 (ALI 1985).
Page 15 of 57 Simons, Dimensions of Negligence 8/7/02
in the crime of arson).
34
However, a purely cognitive conception necessarily
applies when negligence pertains to a circumstance element of a crime (such as
a victim’s nonconsent or age in a sexual assault crime). After all, an actor cannot
create an unjustifiable risk that a victim of sexual assault is under age; by
definition, a “circumstance” element is a legally relevant state of affairs over
which the actor lacks control.
35
Thus, if rape requires that the actor be negligent
as to the victim’s nonconsent, then the actor’s negligence consists solely in his
unreasonably lacking awareness of the risk (category (b), above), not in his
creating a substantial and unjustifiable risk of some harm (category (a), above).
It is true, then, that the criminal law often (though not always) employs a
conduct conception of negligence together with the cognitive conception. But
this hardly shows that the conceptions are identical. Indeed, it might be
preferable if the conceptions were disaggregated, to clarify that in a result crime
such as negligent homicide, the prosecution should prove both forms of
negligence.
34
The conduct-plus-cognitive definition also applies when Model Penal Code
“recklessness” applies to a result element, because the MPC definitions of recklessness
and negligence contain the same requirement of unjustifiable risk-creation. Thus,
reckless manslaughter (reckless causation of death) requires proof both of awareness of
a substantial risk of death, and of unjustifiable creation of a substantial risk of death.
35
In this regard, it contrasts with “result” elements, which (again by definition) the actor
does have power to bring about. See Paul Robinson, Structure and Function in Criminal
Law 26 (1997); Simons, Rethinking Mental States, supra note 9=, at 535-537.
A related point: the cognitive-plus-conduct negligence definition is a doubly
evaluative standard, directly applied by the trier of fact. (In negligent homicide, for
example, the jury decides both whether the actor should have been aware of the risk, and
whether he created an unjustified risk.) By contrast, when a purely cognitive negligence
definition is coupled with other conduct requirements, the trier of fact’s evaluative rule is
much more limited, for those conduct requirements reflect a conclusive culpability
judgment that the legislature has already made. (In so-called “negligent rape,” the jury
decides whether the actor should have been aware that the victim was consenting, but
not whether force or penetration should be required for rape. The latter is a legislative
judgment, precluding the actor from raising the claim that it is justifiable to engage in
nonconsensual forcible intercourse with another (apart from narrow criminal law
defenses).
Page 16 of 57 Simons, Dimensions of Negligence 8/7/02
Let us turn to the second issue noted above, the issue of contextuality. A
closer look at the conception of “negligent” inadvertence reveals that its very
meaning depends on the other elements of the crime or tort with which it is
associated. This contextual dependence illustrates that the distinction between
“cognitive” and “conduct” negligence is somewhat overdrawn.
In one obvious sense, the evaluative judgment that a cognitive negligence
standard demands is distinct from the judgment that a conduct negligence
standard demands: the question is what, all things considered, the actor should
have believed, rather than what he should have done. But this way of putting it
conceals an important connection between the two evaluations. The point of the
cognitive evaluation is not simply to determine what the actor “should have
believed” in the abstract. Rather, whether the actor is at fault in failing to arrive at
a particular belief, and how seriously he is at fault, depends on the larger
normative context, and indeed is subsidiary to a broader normative judgment.
Whether the actor “should” have realized that another person was less than age
sixteen depends, for example, on whether he is charged with selling cigarettes to
a minor, with employing an underage person, or with statutory rape. If one of
these crimes is punished much more harshly than the others, the actor is under a
more stringent duty to determine the age of the victim and thus avoid the risk of
violating the prohibition.
36
The social context of the interaction is also significant:
a request to see identification cards is more reasonable to expect in a business
setting (e.g. a sale in a liquor store) than in the setting of a consensual social
date that has progressed to the point of sexual intimacy. At the extreme, the
moral fault of making a mistake about another’s age can be quite trivial, if the
context is a purely social one in which the risk of criminal conduct appears to be
insignificant. Thus, suppose an absent-minded professor asks how a friend’s
daughter is enjoying high school, when it should be obvious that she is still in
grade school. Since the only issue here is the moral rather than legal duty to use
reasonable care to avoid embarrassing another, the professor’s cognitive
negligence reflects a weak form of fault.
37
36
See Kenneth W. Simons, When is Strict Criminal Liability Just?, 87 J. Crim. L. &
Criminol. 1075, 1093, 1123-24 (1997).
37
Indeed, a variation of the cognitive negligence standard applies even outside of the
context of fault liability. Notice that a “reasonable foresight of risks” criterion can be part
Page 17 of 57 Simons, Dimensions of Negligence 8/7/02
Indeed, because of its context-dependence, a cognitive negligence
evaluation sometimes will consider ex ante risks in at least a limited way,
notwithstanding the discussion earlier. For a determination that the actor was
“negligently” inadvertent should consider the ex ante risks that the negligent
mistake or ignorance will contribute to unjustified conduct or an unjustified harm.
A passenger who pays no attention to the condition of the brakes of the car in
which he has been travelling is not negligent, for he has no reason to believe that
he will need to drive and that such information about risks could be relevant to
his planned behavior. If the driver suddenly faints and the passenger must take
over, his prior inadvertence to the poor condition of the brakes is hardly
negligent. The original driver, by contrast, acts unreasonably if he does not take
an appropriate precaution as soon as he discovers or should discover the
condition.
We can see, then, that the criminal law conception of negligence is often
employed in conjunction with the tort conception, and that the cognitive
conception ultimately has normative significance only in the context of the actor’s
overall conduct, as defined by all material elements of the crime or tort. Neither
point, however, denies that the conduct and cognitive conceptions are
fundamentally distinct. For those conceptions still express very different
of a strict liability standard, with respect to the scope of the risks as to which strict liability
is imposed or the proximate cause limitations of liability for harm factually caused by the
relevant activity. See Dobbs, supra note 5=, §346, p. 951 (The Rylands v. Fletcher rule is
based on the idea that “a person who introduces something to the land that is not
naturally there and likely to do mischief if it escapes must be held strictly liable for
foreseeable harms resulting if it does in fact escape.”); id. at §349, pp. 959-60
(“[D]efendant's strict liability activities must at least be a proximate or legal cause of that
harm… For example, if the defendant's dog has a known propensity to bite house guests,
the defendant will be strictly liable for the dog's bites, but not strictly liable when the dog
merely gets in the plaintiff's way and causes a fall.”)
On the other hand, in this context it does not appear that the reasonableness or
unreasonableness of the actor’s foresight of risk is really a judgment of fault. Rather than
expressing a judgment that the strictly liable actor is at fault for not accurately perceiving
the scope of the risks he creates, “reasonable foresight” might operate as an appropriate
limitation on the extent of strict liability in the interests of a fair (or economically optimal)
allocation of financial responsibility between a nonfaulty injurer and a nonfaulty victim.
Page 18 of 57 Simons, Dimensions of Negligence 8/7/02
inquiries—whether the actor should have done something different, rather than
whether he should have believed otherwise. To be sure, whether one “should”
have believed otherwise is dependent on the context, including the acts that one
should not have taken. Still, the ultimate criterion of the seriousness of a crime
(and, sometimes, of a tort) depends on all of the elements of the crime, and on all
of the actor’s relevant beliefs and motives, not just the unreasonableness of the
actor’s beliefs as to a particular element. For example, in assessing the
seriousness of the crime of rape, one should not focus exclusively and narrowly
on how unreasonable the actor is in believing that the victim is consenting; for it
is also highly relevant whether the actor recognizes that she might not be
consenting, or knows that he is using force or a threat of force.
B. When tort law employs a cognitive conception of negligence
The third issue identified above is whether the tort conception of
negligence can do without a cognitive conception of negligence. Can we really
make any sense of unreasonably dangerous conduct without any reference to
what the actor should have believed?
In many tort negligent cases, the judgment that the actor’s conduct was
deficient does rest in part on the actor’s cognitive deficiency. Often, the
judgment that a dangerous driver’s creation of risk of harm was unreasonable
depends in part on his unreasonable failure to foresee the risks of his conduct,
either through negligent inadvertence or negligent mistake. One who fails to
observe carefully whether pedestrians are nearby can be negligent because
careful observation would have enabled him to avoid creating an unreasonable
risk of harm.
Of course, in many standard negligence cases, the actor is quite aware of
the relevant risks. In these cases, negligence often takes the form of an
unreasonable decision to encounter the risks, a decision reflecting a socially
unreasonable weighing of the risks and benefits of one’s conduct. The actor can
be unreasonable in assessing the probability of the risk: he realizes that
pedestrians are in the vicinity but believes he has extraordinary driving skills that
will permit him to avoid hitting them. Or he can be unreasonable in overvaluing
Page 19 of 57 Simons, Dimensions of Negligence 8/7/02
the social importance of pursuing his own ends, or in undervaluing the
seriousness of the harms that he might inflict.
More fundamentally, the ex ante perspective that is normally a necessary
feature of the tort negligence judgment itself presupposes a certain kind of
“cognitive” judgment, quite apart from whether the actor is subjectively aware of
the relevant risks. For an ex ante analysis requires that we characterize the
relevant risks, and this in turn requires an epistemic judgment. That is, a
negligent actor is one who creates an unreasonable risk that she could have
prevented by a reasonable precaution. But the reasonableness of the risk and of
the corresponding precaution are ordinarily judged ex ante.
38
One cannot
conclude that an actor took an unreasonable risk of future harm without some
framework for identifying what risks she should have identified in advance. “On a
clear day,” the saying goes, “you can foresee forever.” The question is not
whether, in hindsight, we now know that the actor should not have taken the risk,
in light of the harms and benefits that followed. Rather, the question is what
precaution the actor should have taken, in light of the risks that, at the time of her
action, she “should” (in some sense to be defended) have realized she was
creating.
39
Thus, the tort conception presupposes an idealized epistemic perspective
with respect to the expected likelihood and nature of the risks posed by the
38
This is not true, however, in cases of deficient skill. See text at notes 42-44=.
39
From a nonepistemic perspective, the probability of a harmful result can be viewed as
either 1 or 0. It either will or will not occur. See Larry Alexander, Foreward: Coleman
and Corrective Justice, 15 Harv. J. L. & Pub. Pol. 621, 634-635 (1992); Heidi Hurd, The
Deontology of Negligence, 76 B.U. L. Rev. 249, 263-264 (1996); Michael Moore, Placing
Blame: A General Theory of the Criminal Law 411-412 (1997). See generally Stephen R.
Perry, Risk, Harm, and Responsibility, in Philosophical Foundations of Tort Law 321
(David G. Owen ed. Oxford, 1995).
Michael Moore incorrectly attributes to me the view that negligence is a conduct
requirement, not a mental state requirement. Moore, id. at 411. My actual view is that
some conceptions of negligence emphasize unreasonable conduct more than
unreasonable beliefs or attitudes; but that even the unreasonable conduct conception
ordinarily employs the idea of epistemic risk. See Simons, Rethinking Mental States,
supra note 9=, at 547-552.
Page 20 of 57 Simons, Dimensions of Negligence 8/7/02
actor’s conduct.
40
An actor’s inadvertence to those risks, or an actor’s mistaken
belief (that those risks are less than what this ideal perspective suggests), are
two ways in which an actor might fail to view the risks with sufficient seriousness
and therefore fail to take a reasonable precaution.
Still, such instances of cognitive deficiency are not the only explanations
of negligent conduct. An actor who does advert to the risks and who makes a
reasonable judgment about their significance can still act negligently if he
misjudges the benefits of his conduct, or if he simply acts unreasonably in light of
the risks and benefits. In all of these cases, the ultimate judgment of fault
concerns the actor’s conduct in light of his beliefs. Although an idealized
epistemic perspective is normally part of the conception of conduct negligence,
that perspective operates to identify which risks are and are not justifiable. It
certainly does not imply that all instances of conduct negligent are due to
cognitive deficiency. Thus, the necessity of an epistemic perspective in judging
conduct negligence does not mean that the tort conception of negligence
ultimately is merely a restatement of the cognitive conception.
Just as one can be reasonable in one’s beliefs yet act negligently, one
can be unreasonable in one’s beliefs yet act reasonably. A clear illustration of
the point is the following type of case: an actor unreasonably underestimates or
lacks awareness of specific risks, yet the actor’s response to possible risks is
extraordinarily cautious, so that his precautions, in the end, are not negligent.
Consider an example:
(J) Jane, an elderly driver, forgets to check for traffic before taking a highway
exit, but she also leaves her blinker on for an extended period of time and
moves very slowly into the exit lane.
40
The idealized epistemic perspective can also be applied to the costs, and not just to
the risk-reduction benefits, of taking a precaution. (For example, taking a precaution
might create an uncertain but significant risk of additional injuries to a different group of
potential victims.)
Page 21 of 57 Simons, Dimensions of Negligence 8/7/02
If this combination of inadvertence and extra precaution is no more risky than the
actions of a careful, advertent driver who takes lesser precautions while exiting,
then the elderly driver would not and should not be deemed negligent.
41
In other contexts, too, determining whether conduct is negligent does not
depend on what the actor should have believed. Careful observation and
perception are neither necessary nor sufficient for careful conduct.
42
An
especially important category here, and one sometimes neglected in the
negligence literature, is deficient skill in conducting an activity. A person might
be “hasty and awkward”
43
and thereby cause an injury. A surgeon’s hand might
slip during an operation. The operator of a bicycle or motor vehicle might fail to
control the vehicle adequately due to slow reaction time or lack of dexterity. In
none of these cases is “unreasonable failure to foresee risks” an essential
element of the analysis.
44
For all of these reasons, it is clear that conduct negligence does not
collapse into cognitive negligence.
C. Other varieties of negligence
The concepts of conduct and cognitive negligence are more nuanced
than they might first appear. As we have seen, conduct negligence includes not
only an unreasonable conscious judgment about whether to take a precaution,
and unreasonable failure to take a precaution due to unreasonable inadvertence
or mistake, but also deficient skill in conducting an activity. To put the point
41
If an actor deliberately compensates for what she realizes is a personal deficiency in
observing risks, her strategy is clearly reasonable. See Simons, Culpability and
Retributive Theory, supra note 30=, at 374-375 n. 26. However, Jane’s driving in the
example is also reasonable even though if she did not consciously adopt such a
compensatory strategy.
42
Indeed, overly attentive and cautious drivers can sometimes be more dangerous than
drivers who rely on safe habits. See Joel Feinberg, Sua Culpa, in Doing and Deserving:
Essays in the Theory of Responsibility 190 (1970).
43
Cf. O. W. Holmes, The Common Law 108 (Little, Brown and Co. 1881).
44
It is doubtful, however, that the fault exhibited by deficient skill is sufficiently serious
that it should amount to criminal negligence.
Page 22 of 57 Simons, Dimensions of Negligence 8/7/02
differently, conduct negligence can consist in unreasonable conduct as judged by
an evaluative standard, quite apart from whether the actor’s actual decision-
procedure reflects an unreasonable weighing of values and risks.
45
Moreover, a closer look at “cognitive” negligence reveals that it can
encompass a variety of forms of fault, and that the supposedly sharp distinction
between inadvertent fault (negligence) and advertent fault (recklessness) is often
blurry indeed. An actor might recognize a risk, but later forget about it. She
might believe that a risk of injury is very small, when she reasonably should have
appreciated that it was much greater.
46
She might be aware of relevant facts, yet
fail to appreciate that they reveal the existence of a substantial risk.
47
Or she
might have a latent awareness of background risks (e.g., if asked, she would
readily admit that driving quickly around a blind curve is potentially very
dangerous), yet fail to bring that awareness to the forefront at the moment of
action. In all of these cases, fault exists in the general sense of an unreasonable
failure of inference or an unreasonable failure to draw upon beliefs or
perceptions,
48
but it is difficult to say whether the actor is “advertent” or
“inadvertent.”
45
See Simons, The Hand Formula, supra note 1=, at 932.
46
Consider People v. Strong, 37 N.Y.2d 568 (1975). Defendant, a Sudan Muslim who
believed in the power of mind over matter, claimed that he believed it was safe to insert a
knife into the chest of a fellow member of the cult, having allegedly done so safely many
times before. A claim by the defendant that he believed there was literally zero risk of
injury from the procedure is not very credible. (This is a question for the jury, however.
Thus, when the trial court did not submit the charge of negligent homicide to the jury
along with the manslaughter charge, it is understandable that the Court of Appeals
reversed.)
47
Thus, Restatement (Second) of Torts §12 distinguishes “reason to know” (where the
actor actually has information from which he should infer a relevant fact), from “should
know” (where the actor should ascertain the fact). And the Draft Restatement (Third) of
Torts provides that a person acts with recklessness if she either knows of the risk or
“knows facts that make that risk obvious to anyone in the person’s situation.” §2.
48
See Simons, Culpability and Retributive Theory, supra note 30=, at 382-384; R.A. Duff,
Intentions, Actions, and Criminal Liability 159-160 (Oxford: 1990); A. P. Simester, Can
Negligence be Culpable?, Oxford Essays in Jurisprudence, Fourth Series 85, 95 (J.
Horder ed. 2000) (“What goes wrong when beliefs are faulty? Either the belief that the
Page 23 of 57 Simons, Dimensions of Negligence 8/7/02
I have thus far focused on the use of a negligence criterion either as a
general tort liability standard or as a culpability element in a criminal law offense.
Of course, negligence and reasonableness criteria are employed more widely.
Within tort law, reasonableness criteria govern the use of defensive force in a
number of ways—with respect to the proportionality of the force used relative to
that threatened, with respect to its necessity, and, finally with respect to the
adequacy of the evidence for defendant’s beliefs concerning each of these
matters.
49
Negligent misrepresentation is a recognized tort.
50
Negligence as to
the falsity of a publication also plays an important role in defamation law.
51
Within criminal law, the rules of self-defense are sometimes even more elaborate
than in tort law, and the proportionality and necessity requirements are frequently
defendant acts upon is unreasonably acquired, or there is some further belief, relevant to
her behavior, that unreasonably is not considered. Expressed in this way, it is the
process by which the defendant accumulates and considers beliefs that has failed.”).
See also Kimberly Ferzan, Opaque Recklessness, 91 J. Crim. L. & Criminol. = (2001)
(forthcoming) (arguing that “recklessness” should not include all latent knowledge, but
should extend to cases where the actor recognized the dangerousness of her conduct
and at some preconscious level appreciated the risks that made her conduct dangerous).
49
To justify the use of nondeadly defensive force, the Restatement (Second) of Torts
requires that the degree of force simply be “reasonable” in proportion to that threatened,
and also requires that the actor reasonably believe that he is under threat. See §63. To
justify the use of deadly defensive force, the Restatement requires that the degree of
force satisfy certain rule-like criteria specifying the circumstances in which such force is
considered proportionate. See §65. More generally, a reasonableness requirement
qualifies the exercise of a number of privileges to intentional torts. See Dobbs, supra
note 5=, §69, p. 157; id. at §70 (self-defense); id. at §76 (defense of possession of land
or chattels); id. at §108 (public necessity).
50
See Dobbs, id. at §472.
51
See Dobbs, id. at §419, p. 1179, noting that, as a constitutional matter, even private
plaintiffs must prove such negligence when the defamation touches on an issue of public
concern.
Page 24 of 57 Simons, Dimensions of Negligence 8/7/02
specified in rule-like form, and not simply defined in terms of “reasonableness.”
52
Negligence criteria are frequently used outside of tort and criminal law as well.
53
Moreover, negligence comes in more than two flavors. For the concept of
negligence or unreasonableness can be applied beyond beliefs and conduct, to
encompass other features of the actor or the act. Negligence criteria in self-
defense, for example, while often formally articulated in terms of beliefs, are also
in substance criteria for reasonable or unreasonable control of one’s emotions
and violent impulses. Thus, suppose a self-defense provision requires that the
actor “reasonably believe that immediate use of deadly force is necessary to
avoid deadly force.” The emergency circumstances and lack of time for calm
judgment are certainly relevant to the reasonableness of a defender’s response.
52
See MPC §3.04.
53
To take one of many examples from property law, the Restatement (Third) Property
§6.13 frames a common interest community's duties to its members in terms of
reasonableness:
(a) to use ordinary care and prudence in managing the property and financial
affairs of the community that are subject to its control;
(b) to treat members fairly;
(c) to act reasonably in the exercise of its discretionary powers including
rulemaking, enforcement, and design control powers;
(d) to provide members reasonable access to information about the association,
the common property, and the financial affairs of the association.
Moreover, the law of nuisance, at the borderland of tort and property, often
employs reasonableness criteria. See Dobbs, supra note 5=, Ch. 34. The Restatement
(Second) of Torts’ provisions on nuisance law are problematic, however, insofar as
“unreasonableness” criteria govern both fault and strict liability. See Simons, Rethinking
Mental States, supra note 9=, at 494-495 n. 110. Furthermore, according to Professor
Dobbs:
“Unreasonable” in nuisance law is not like “unreasonable” in the law of
negligence, for it does not refer to risk-creating conduct of the defendant but to
the reasonable expectations of a normal person occupying the plaintiff’s land.
Dobbs, id. at 1326.
In contract law, the duty of good faith is sometimes interpreted as requiring
reasonable care, though a narrower interpretation requires only avoidance of certain
forms of bad faith and dishonesty. See Uniform Commercial Code §1-203; Restatement
(Second) of Contracts §205, comment a (1981); E. Allan Farnsworth, Contracts §7.17
(Aspen 1999).
Page 25 of 57 Simons, Dimensions of Negligence 8/7/02
Indeed, it is often unrealistic to expect an actor in such a crisis situation to form
any clear and definite belief about the precise degree of force threatened or the
availability of alternatives. Accordingly, “reasonableness” is not just a question of
justifiable “beliefs” about the nonexistence of alternative, less deadly forms of
response.
54
(Consider the example of Irma, above.)
Finally, one might also characterize conative or desire states, such as
culpable indifference or “extreme indifference to the value of human life,” as
exhibiting one type of negligence—namely, a “negligent” or “unreasonable”
attitude towards the suffering of others.
55
It might, however, be best not to
expand the “negligence” concept quite this far.
56
54
See Simons, Rethinking Mental States, supra note 9=, at 548-549, n. 288. See also
Cynthia K. Y. Lee, The Act-Belief Distinction in Self-Defense Doctrine: A New Dual
Requirement Theory of Justification, 2 Buff. Criminal. L. Rev. 191 (1998) (arguing that
self-defense standards should more explicitly distinguish requirements of reasonable
belief and reasonable conduct); Restatement (Second) of Torts, §70, comment b (“[T]he
qualities which primarily characterize a reasonable man [for purposes of self-defense] are
ordinary courage and firmness.”).
Indeed, the criminal law implicitly recognizes a spectrum of degrees of fault in
failing to control one’s violent impulses. The defendant who responds to a mild insult with
homicidal rage is guilty of murder; the defendant who responds to a more serious
provocation is guilty of the lesser crime of voluntary manslaughter; and the defendant
who responds to deadly force might not be guilty of any crime. Of course, these three
legal categories are not expressly defined in terms of varying degrees of deficiency of
self-control; still, this type of deficiency at least partly explains the categories.
Some self-defense cases also illustrate the point that reasonable care might
embrace both justified conduct and conduct that is unjustified but excused. See text at
notes 83-85= infra.
55
See R. A. Duff, supra note 45=, Ch. 7; Simons, Culpability and Retributive Theory,
supra note 30=, at 375-379.
56
See Henry W. Edgerton, Negligence, Inadvertence, and Indifference; The Relation of
Mental States to Negligence, 39 Harv. L. Rev. 849 (1926)(rejecting the view that
negligence requires a culpable mental state of indifference). See also Simons,
Culpability and Retributive Theory, supra note 30=, at 375-379, for discussion of some
difficulties with a conative conception of negligence.
Page 26 of 57 Simons, Dimensions of Negligence 8/7/02
Thus, there are many ways that an actor’s beliefs, desires, temperament,
reasoning powers, emotional self-control, capacities for physical dexterity, and
other characteristics can issue in deficient or “unreasonable” conduct. This
variety is obscured if we limit our attention to a univocal concept of “negligent”
conduct or of “negligent” cognition.
VI. Distinct legal functions of the negligence concept
The discussion above of the similarities between the tort and criminal law
conceptions of negligence identified several important commonalities. Each
conception employs an evaluative rather than descriptive criterion; incorporates a
“reasonableness” standard; embodies a conclusive judgment that the relevant
conduct or belief was unjustified; considers the “risk” or “chance” of a harm
occurring or a fact existing; and distinguishes between the existence of such a
risk or chance, on one hand, and the harm actually coming to pass, or the fact
actually existing, on the other.
Consistent with these commonalities, however, negligence standards are
employed in law in a number of different ways. In the following, I identify five
important functions
57
that such standards serve: expressing a legal norm in the
form of a standard rather than a rule; personifying fault; empowering the trier of
fact to give content to the standard; creating a secondary legal norm parasitic on
a primary legal norm; and distinguishing grades of fault. The significance of the
function sometimes depends on whether the conduct or cognitive conception of
negligence is at issue, as we shall see. But the different functions also represent
an additional set of dimensions of the negligence concept, dimensions that are
important in their own right.
These functions, although distinct in principle, are by no means mutually
exclusive. In examining them, I sometimes speculate about how a legal regime
57
By suggesting that negligence standards serve different “functions,” I do not mean to
presuppose that the underlying normative rationale for negligence liability itself is
instrumental or consequentialist. Rather, I only suggest that it is worth attending to some
distinctive institutional roles that legal negligence standards play. These roles or
functions are consistent with retributive and corrective justice, as well as utilitarian,
accounts of the content of a negligence standard and of its rationale.
Page 27 of 57 Simons, Dimensions of Negligence 8/7/02
would look if it focused principally on the function under discussion. The analysis
will show that we could avoid some misconceptions and confusions about the
significance and justifiability of employing negligence standards if we were
clearer about which function we wish to employ.
A. Express the legal norm in the form of a standard rather than a rule
If a legal criterion provides that conduct or a belief must be “negligent” or
“unreasonable,” the legal norm takes the form of a relatively vague standard
rather than a relatively precise rule. There are many ways to distinguish between
standards and rules; for our purposes, the most important distinction is in terms
of the specificity of the norm. This distinction is one of degree. At the most
abstract, negligent conduct could be simply “unreasonable conduct” or
“unreasonably risky conduct.” In tort law, indeed, an extremely general and fairly
abstract standard is employed: liability exists for any negligently caused physical
harm, and negligence is defined in very general terms.
58
At the same time, more
specific standards are employed in particular tort contexts. In products liability,
for example, the criteria for design and warning defects are effectively negligence
tests, adapted to the relevant features of that subject matter.
59
Often, when tort
law identifies with precision the scope or limits of the actor’s duty, the point is to
crystallize into more rule-like form the meaning of “negligence” in a particular
58
See Draft Restatement (Third) of Torts, §6 ( “An actor who negligently causes physical
harm is subject to liability for that harm.”). See also id., §3 (identifying the primary factors
to be balanced in ascertaining whether an actor is negligent). Moreover, jury instructions
in negligence cases often merely ask the jury to decide, without further elaboration, what
would be reasonable or ordinary care under the circumstances. See Michael Wells,
Scientific Policymaking And The Torts Revolution: The Revenge Of The Ordinary
Observer, 26 Ga. L. Rev. 725, 732 (1992).
59
Thus, in the Restatement (Third) of Torts: Product Liability, the criteria for determining
design and warning defects consider whether “reasonable” alternative designs exist,
whether “reasonable” warnings are feasible, and whether the omission of such designs or
warnings “renders the product not reasonably safe” for “reasonably foreseeable uses and
risks.” §2 (ALI 1998); see id. at §2, cmt e, f, and n.
Page 28 of 57 Simons, Dimensions of Negligence 8/7/02
context.
60
And special rules apply to particular types of harm: thus, American tort
law permits only limited liability for negligent infliction of emotional distress or
economic harm.
61
Criminal law uses the concept of negligence much less pervasively than
tort law does, and for good reason. The negligence concept, even if articulated
somewhat by such criteria as “reasonable person in the community” or risk-utility
balancing, remains fundamentally vague.
62
To employ such a standard more
extensively in the criminal law would present serious problems of fair notice and
unreviewable discretion. Of course, there is also a serious question whether tort
negligence is ever sufficiently faulty to warrant criminal liability; but even if an
aggravated form of tort negligence (such as “gross negligence”) were the
standard, pervasive use of such a standard would remain highly troublesome.
At the same time, however, implicit negligence criteria are employed
more widely, even in the criminal law. Even a norm that is quite “rule-like” could,
in substance, be a negligence norm, if it identifies behavior that is comparable in
fault or culpability to behavior described simply as “negligent” or “grossly
negligent.” One must carefully examine the norm’s conduct, circumstance, and
result requirements, and also the norm’s rationale, in order to determine what
degree of substantive fault or culpability is embodied in a norm. For example, a
legal duty never to drive at an excessive speed, or never to use hand-held cell
phones while driving, is just a codification, in rule-like form, of the duty not to
drive negligently.
63
60
See Simons, The Hand Formula, supra note 1=, at 927.
61
Dobbs, supra note 5, §3.08.
62
For a powerful statement of this objection, concluding that the vagueness of the
negligence standard is highly problematic even as applied to tort law, see Kenneth
Abraham, The Trouble with Negligence, 54 Vand. L. Rev. 1187 (2001).
63
Moreover, one must also look beyond the explicit legal culpability requirements (or lack
thereof) of a legal norm, in order to determine what degree of substantive fault or
culpability it embodies. Thus, if the legal duty is not to “knowingly” use hand-held cell
phones while driving, that duty still is essentially an instance of the duty not to drive
negligently. Even a norm that contains no explicit culpability requirements could
nonetheless reflect fault, and indeed might, as applied, more effectively target persons
who are at fault than would a nominal fault requirement. Consider an apparently “strict
Page 29 of 57 Simons, Dimensions of Negligence 8/7/02
The distinction between understanding negligence as a rule and
understanding it as a standard can be made even more vivid by conducting the
following two thought-experiments.
First, following a suggestion by Heidi Hurd,
64
imagine replacing the
general negligence standard in tort law with a set of minirules or minimaxims of
the following sort:
? Don’t use a hand-held cell phone while driving.
? Stop, look, and listen before crossing a train track.
65
? Don’t perform a medical operation unless you are experienced in the
technique.
? Don’t prescribe drug X for condition Y in the face of contraindications
Z1 and Z2.
Second, and more heroically, imagine the converse type of replacement.
All the specific norms of the criminal law—regulating particular types of theft,
infliction of personal injury, invasion of sexual autonomy, breaches of public trust,
and so forth—are replaced by a global norm:
? Don’t act unreasonably.
liability” rule such as a criminal prohibition against selling alcohol to a person who has not
produced a form of identification. Such a rule might, in actual application, more
accurately identify persons who negligently sell alcohol to those under age than would a
standard explicitly framed in negligence terms. See Simons, When is Strict Criminal
Liability Just?, supra note 36=, at 1125-1131.
The ability of the law-creator to manipulate both offense elements and
accompanying culpability terms means that statutory or other legal “culpability” criteria
have only secondary significance. For a further discussion of this issue, see Simons,
Culpability and Retributive Theory, supra note 30=, at 394-397 (discussing varying
culpability requirements and varying definitions of nonconsent in the law of rape).
64
See Hurd, supra note 39=, at 266-268.
65
Cf. Baltimore & O.R.R. v. Goodman, 275 U.S. 66, 70 (1927), overruled in Pokora v.
Wabash Ry., 292 U.S. 98 (1934).
Page 30 of 57 Simons, Dimensions of Negligence 8/7/02
Or, to preserve the usual understanding that negligence requires only the most
minimal degree of fault, imagine replacing all current crimes (at least, those not
reflecting genuine strict liability) that impose the most minimal level of
punishment with this norm:
? Don’t act in an unreasonable way that deserves minimal criminal
punishment.
And we might similarly replace all other crimes, however seriously they are now
punished, by adopting a series of norms of escalating fault or culpability:
? Don’t act in an unreasonable way that deserves moderate criminal
punishment.
? Don’t act in an unreasonable way that deserves moderately serious
criminal punishment.
? Don’t act in an unreasonable way that deserves serious criminal
punishment.
Both replacements clearly are objectionable, but why, exactly, is this so?
The complete replacement of a negligence standard with specific rules
that abjure any mention of reasonableness or negligence raises two significant
problems.
66
The first problem is scope: it is impossible to articulate in advance
specific rules to cover the full range of ways in which one might be at fault and
risk harm to others. Even Oliver Wendell Holmes lacked the foresight to
announce a rule for cell phones.
The second problem is a difference in content. An articulation of
negligence in the form of a rule will ordinarily differ from its articulation in the form
of a standard: to paraphrase G.E. Moore, it is always an open question whether
violating a rule (such as the rule about using cell phones) really is negligent in
every imaginable case.
67
66
See Hurd, supra note 39=, at 266-268, whose arguments I restate and modify
somewhat in the next two paragraphs.
67
Similarly, it is an open question whether complying with a rule intended to substitute for
a negligence standard is always non-negligent. If it is negligent to sell alcohol to a minor,
then a substitute rule forbidding the sale of alcohol to one who has not furnished two
forms of identification might be both overinclusive and underinclusive. For example, it
Page 31 of 57 Simons, Dimensions of Negligence 8/7/02
Perhaps these defects of substituting rules for standards could be
addressed by adding a requirement that the rule violation be “unjustified.” But
this change would undermine the advantages of the rule-like form, bringing us
closer to the standard-like formulation of negligence. The tort doctrine of
negligence per se is illustrative here. Insofar as violation of a criminal statute is
considered negligence “per se,” i.e., without engaging in the normal (standard-
like) inquiry into whether the actor used reasonable care under all the
circumstances, the doctrine is a rule-like form of negligence. Yet the doctrine is
not applied mechanically; and courts are receptive to at least some justificatory
defenses.
68
The broader the defenses, however, the less the rule-like form
achieves its distinctive benefits of certainty and predictability.
Now consider the converse thought-experiment: replacing all existing
criminal law rules with a simple injunction not to act unreasonably (or with a
series of such injunctions graded only by degree of unreasonableness). Such a
standard would not merely lack the virtues of rules (including notice,
predictability, and control of discretion). It would also conceal or mischaracterize
the disparate and distinctive normative commitments embodied in the separate
criminal law categories. For it would treat such values as sexual autonomy,
bodily integrity, property interests, and duties of loyalty to a nation as fully
commensurable exemplifications of a more general criterion of unreasonable
conduct. The fact that the existing criminal law clearly differentiates these
different types of wrongs would have to be understood as merely an historical
anachronism or a convenient drafting shorthand for recurring fact patterns.
would be overinclusive if the seller provides alcohol to his own overage son without
checking identification, and underinclusive if the seller is acquainted with the buyer and
knows that he is underage, despite apparently valid identification.
68
See Simons, Strict Liability, supra note 36=, at 1126 n. 162. The Restatement
(Second) of Torts, although purporting to treat violation of statutes as conclusive
evidence of negligence, also provides some broad, all-purpose defenses: violation of a
law or regulation may be excused “when [the actor] is unable after reasonable diligence
or care to comply, … [or when] compliance would involve a greater risk of harm to the
actor or to others.” §288A (2) (c), (e). The Draft Restatement (Third) of Torts is quite
similar. §15 (b), (e).
Page 32 of 57 Simons, Dimensions of Negligence 8/7/02
Although I cannot pursue the issue here, it is highly doubtful that the topography
of fault is as flat and boring as this.
B. Personify fault
Another important function of a negligence norm is to personify fault.
Negligence is often defined as the failure to observe the degree of care in
conduct (or in forming beliefs) that a reasonable person in the situation would
observe. But this “reasonable person” formulation is only one possible
formulation of negligence. (Notice that I have avoided employing this formulation
in the text until now.) Moreover, defining negligence only as the care that “a
reasonable person” or “a reasonable person in the community” would exercise,
without further elaboration, is problematic. Such a criterion is obscure, and there
is a significant danger that the standard will be applied inconsistently across
similar fact patterns.
69
What, then, is gained by anthropomorphizing the negligence test? If
employed in conjunction with a Learned Hand or other specification of the factors
relevant to a negligence determination, one significant benefit is to make vivid a
negligent standard that might otherwise be extremely abstract.
70
This benefit
might be especially valuable if a lay jury is to apply the standard.
71
But does a
“reasonable person” standard amount only to a useful rhetorical device for
helping the factfinder to analyze and apply the (otherwise abstract)
considerations that are relevant to the negligence inquiry? If negligence should
be understood as an unreasonable balance of the advantages and
disadvantages of taking a precaution, perhaps the reasonable person is just the
person who balances those advantages and disadvantages in a reasonable
69
See Simons, The Hand Formula, supra note 1=, at 930-931.
70
Under the Learned Hand test, failure to take a precaution is negligent if the burden (B)
of taking the precaution is less than the risks of injury that the precaution would prevent,
where risk is the product of the probability of an injury (P) and its severity (L). In short,
one is negligent if B < P x L.
71
Simons, The Hand Formula, supra note 1=, at 931.
Page 33 of 57 Simons, Dimensions of Negligence 8/7/02
way.
72
The “reasonable person” formulation then adds nothing of substance to
the content of the negligence test.
But personification might also serve three additional functions. First, it
seems preferable to an “impersonal” Learned Hand balancing test in accounting
for cases of deficient skill in conducting an activity. The surgeon whose hand
slips during surgery, or the bicyclist who loses control despite the utmost
attention to the risks, act carelessly, but we misdescribe their fault if we try to
characterize it as an unreasonable balance of the advantages and disadvantages
of taking a precaution. The very fact that they are not consciously balancing any
considerations is a telling objection to using a risk/utility test as the exclusive
criterion of negligence.
73
Second, a reasonable person test can readily be calibrated along the
dimension of individualization: In asking what a reasonable person “under all the
circumstances”
74
or “in the actor’s situation”
75
would have done, we can relativize
negligence to certain individual capacities and traits. At the same time, other
forms of individualization can be rejected, for prudential or principled reasons.
Hence, “the reasonable blind person,” “the reasonable ten-year old of similar
intelligence and experience,” and “the reasonable person who has been mugged
72
See Draft Restatement (Third) of Torts §3, comment a.
Also, in cases of inadvertent negligence, when the actor is not consciously
weighing advantages and disadvantages of taking a risk, the balancing or calculus of risk
analysis that many negligence tests call for is often inapt. The anthropomorphic test then
appears to give some guidance. See Simons, id. at 931-933; Draft Restatement (Third)
of Torts, §3, comment k. Still, whatever genuine guidance it does provide would derive
from the specific content given to “the reasonable person.” That test is still a normative
one, not a test of customary conduct. And the test would ideally be more fully articulated,
e.g. as “a reasonable person considerate of the interests of others,” in order to provide
guidance.
73
These examples also illustrate that the negligence standard is sometimes used as a
standard of evaluation, not as a decision-procedure. See text at note 45= supra.
74
See Draft Restatement (Third) of Torts, §3.
75
See MPC, §2.02(2)(d). See also id., §210.3(1)(b) (providing for individuation in the
context of murder mitigated by reason of “extreme emotional disturbance,” which is the
MPC’s version of voluntary manslaughter).
Page 34 of 57 Simons, Dimensions of Negligence 8/7/02
before,” but not “the reasonable racist” or “the reasonable hot-head.”
76
The
“reasonable person” formulation seems especially well-suited to articulating the
situations that do and do not call for relativizing the reasonableness standard.
77
Could we take the anthropomorphic approach much farther? Might we
simplify the analysis of negligence by employing a “super-personification”? In
lieu of the daunting range of negligence conceptions identified in this paper,
perhaps we could ask a single question—namely, whether the actor failed to
satisfy a standard of reasonableness in any respect whatsoever (beliefs, desires,
self-control, conduct, and so forth) that could possibly affect legal culpability or
responsibility. On this view, reasonable care is the care that a person would take
if the person were to have reasonable beliefs and also reasonable values, if he
were to reasonably moderate or balance conflicting desires, exercise reasonable
self-control, draw reasonable inferences, act with reasonable skill, and the like.
78
76
Cf. People v. Goetz, 68 N.Y. 2d 96 (N.Y. 1986).
77
To be sure, individualization might also be analyzed in other ways. One might ask, not
whether a reasonable blind person would employ the precaution of using a cane in
crossing the street, but whether and how a socially acceptable balance of the advantages
and disadvantages of taking that precaution would include consideration of the actor’s
blindness. Still, analyzing legally relevant (and irrelevant) capacities in anthropomorphic
terms is less abstract and often more intelligible.
78
See Michael Moore, Law and Psychiatry: Rethinking the Relationship 84 (Cambridge
1984) (the reasonable person embodies “those qualities of character that we think
people should possess, and those capacities of mind that we think all people do
possess”); Jeremy Horder, Criminal Culpability: The Possibility of a General Theory, 12
Law & Philos. 193, 207 (1993) (the criterion of minimal criminal culpability should refer to
“an idealised conception of an agent of good character”). See also Simons, The Hand
Formula, supra note 1=, at 933-934 (discussing the virtue theory account of negligence,
which might naturally take the form of “super-personification”).
Moreover, one could imagine replacing all torts and crimes with a standard that
merely asks whether the actor modestly, seriously, or very seriously departed from the
reasonable person standard. Indeed, in the more limited domain of risky conduct causing
physical harm, current tort doctrine occasionally asks whether the actor is “grossly
negligent” in the sense of grossly departing from the standard of care that a reasonable
person would observe. However, a broad substitution rule would pose the same
problems noted in the prior section.
Page 35 of 57 Simons, Dimensions of Negligence 8/7/02
But, quite apart from the forbidding problems of vagueness and unequal
enforcement posed by such a test, the test is unacceptable. First, it offers an
overly idealized and homogeneous model of legally permissible behavior.
Reasonable people differ in their values, in their beliefs, in their skills, in
numerous other ways. In a pluralist society, diversity of values is a positive good,
and a good to be acknowledged in negligence law as elsewhere.
79
Second,
employing only such a superpersonification would made it very difficult to judge
the reasonableness of an action if (as is virtually always the case) in some
respects the actor or action falls below (or rises above) the standard of
reasonableness. Yet the law must, and does, make such “partial”
reasonableness judgments. Thus, suppose that assaulting a police officer is an
aggravated form of assault. A reasonable person would not assault another; but
we might, for grading purposes, wish to inquire whether a person who commits
an assault should have known that his victim was a police officer. At the same
time, an actor might adventitiously possess greater knowledge of some facts
than a “reasonable” person would possess (for example, he might be aware of
the existence of a pothole on a particular street); and the judgment of negligence
should ordinarily consider the additional knowledge that the actor actually
possesses.
80
More generally, for certain forms of fault such as cognitive
negligence, it is relatively easy to isolate the fault and ask whether, apart from
that fault, the person acted reasonably. We can readily evaluate whether, given
an actual unreasonable belief, an actor’s encountering a risk was reasonable.
81
Third, this global “supertest” precludes separate analysis of different
dimensions of unreasonableness, yet separate analysis is often desirable.
79
See generally Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law (Syracuse
1985).
80
See, e.g., Draft Restatement (Third) of Torts, §12. Under this provision, actors are also
judged by the above-average skills that they happen to possess.
81
However, for other forms of fault, isolating the fault in this manner is more difficult.
Consider the claim that the actor has an “unreasonable” set of desires or values.
Normally one cannot intelligibly pose the question whether, given that he happened to
possess those values, the actor nevertheless acted reasonably. See Simons, Culpability
and Retributive Theory, supra note 30=, at 376-377. (But note that the insanity defense
might be the exception that “proves” this rule.)
Page 36 of 57 Simons, Dimensions of Negligence 8/7/02
Deficient attention or skill might be considered less morally significant than
deficient judgment about whether to take a known risk or deficient control of
violent impulses, and thus less worthy of legal liability. The culpability structure
of the criminal law, in particular, presupposes that the significance of
“unreasonableness” depends on the context, including the offense element to
which it attaches. For example, the Model Penal Code’s basic distinction
between negligent inadvertence and recklessness is based on the judgment that
an actor who is unreasonably unaware of a risk presumptively deserves less
punishment than an actor who is aware of a risk but unreasonably proceeds to
encounter it. After all, we normally cannot be confident that the inadvertent actor
would have proceeded to unreasonably encounter the risk had he been aware of
it.
82
A final possible value of personification is to articulate a notion of
reasonable care that includes excused as well as justified conduct. Suppose we
are considering what action would constitute “reasonable care” in an emergency.
If we conclude that excused as well as justified conduct is “reasonable,” then it
might be helpful to employ a “reasonable person faced with an emergency” test
to accommodate this idea—i.e, the idea that a person in an emergency might
make a decision that is unjustified but understandable, taking into account such
emotions as fear or panic as well as the short time-frame for choice.
83
By
82
See Simons, id. at 374. On the other hand, when an actor is inadvertent but culpably
indifferent to risk, his blameworthiness is sometimes as serious as that of the advertent
actor. This might be so, for example, if it were clear that, had the inadvertent actor been
aware of the risk, he would have taken it, id. at 381, or if the reason for his lack of
awareness is intoxication, anger or a similar unjustifiable cause. Id. at 388. See also
Andrew Ashworth, Principles of Criminal Law 185-187 (3
rd
ed. Oxford 1999) (noting that
an actor who is inadvertent to risk because he acts impulsively or in anger can be as
blameworthy as an advertent actor). Moreover, it is also relevant whether the advertent
actor honestly (though mistakenly) believes that he can avoid the risk entirely. If so, the
advertent actor might be less culpable than many inadvertent actors. See Jeremy
Horder, How Culpability Can, and Cannot, be Denied in Under-age Sex Crimes, Crim. L.
Rev. 15, 20 (2001).
83
See Draft Restatement (Third) of Torts, §9, comments b and c, p. 122 (supporting an
excuse rationale, insofar as “the person’s judgment may have been less sound than
usual” and the person may have “made the less satisfactory choice.”) To be sure, many
Page 37 of 57 Simons, Dimensions of Negligence 8/7/02
contrast, a nonpersonified test (such as “a reasonable balance of the advantages
and disadvantages of a precaution”) cannot so easily accommodate the idea of
unjustified but excused conduct. In criminal law, similarly, one formulation of the
excuse of duress considers what a person of “reasonable firmness” would do in
response to a threat.
84
Although a reasonable person test is especially useful in articulating a
conception of negligence as conduct that is both unjustified and unexcused, this
is ironic. The “reasonable person” formulation is one of the most traditional ways
of articulating negligence. And yet, shielding from negligence liability conduct
that is unjustified (albeit excused) is in tension with one of the distinguishing
characteristics of negligence itself: that it is an all-things-considered judgment
that the actor’s conduct or belief is deficient and unjustified. On the other hand,
insofar as negligence is understood as a derivative legal concept, parasitic on
other legal norms (see category D, below), and insofar as primary legal norms do
offer defenses of both justification and excuse, the view that excused conduct is
not negligent is less surprising.
85
emergency decisions are justifiable ex ante, even though an alternative choice, in
hindsight, would have been better. But some actions in an emergency are not justifiable
ex ante; for these, the question of excuse arises.
84
See MPC, §2.09(1). Some formulations of the partial excuse of provocation, similarly,
ask whether a reasonable person would lose control of their emotions under the
circumstances. See Dressler, supra note 15, § 31.07, at 529 (provocation is deemed
adequate for mitigation if it would prompt a reasonable person to act from passion rather
than reason); LaFave, supra note 15, § 7.10[b], 705 (“‘reasonable provocation’ is
provocation which causes a reasonable man to lose his normal self-control”). See also
Samuel H. Pillsbury, Judging Evil: Rethinking the Law of Murder and Manslaughter, 128-
30 (New York University Press 1998) (under the modern psychological approach, the
emphasis is on “the intensity of emotion experienced by the accused and its impact on
his choice-making abilities”).
85
The Model Penal Code does not clarify whether unjustified but excused conduct is
necessarily non-negligent. On the one hand, its definitions of negligence and
recklessness refer to “unjustified” but not to “unexcused” risk-taking. §2.02 (2) (c), (d).
On the other hand, the definitions also refer to the standard of care that a reasonable
person would observe “in the actor’s situation,” a qualification that is intended to permit
courts to consider a wide range of individualizing conditions. MPC §2.02, cmt. 4, 242.
Page 38 of 57 Simons, Dimensions of Negligence 8/7/02
C. Empower the trier of fact to give content to the legal standard
A negligence standard often has a third important function: as applied, the
standard effectively results in delegation of lawmaking power to the trier of fact.
A general tort standard of negligence, whether defined in anthropomorphic terms
as “the care that a reasonable person would exercise” or in balancing terms as “a
duty to take a precaution if the costs of a precaution are less than its foreseeable
benefits,” does not have a very definite content. When applied to a given fact
pattern, however, its content is necessarily specified. The trier of fact (either trial
judge or jury) is the legal body that gives content to this standard. Similarly, in
criminal law, the legislature typically provides a very general definition of
negligence, while the jury, in applying the standard, provides specific content.
On this view, “negligence” is similar to “unreasonable restraints of trade”
under the Sherman Act and to any other vague legal standard that is enunciated
by one legal decisionmaker but given more specific content by a different one.
The second decisionmaker could, in theory, be an administrative agency, a court,
or a jury; in negligence law, the decisionmaker is either the judge or jury, acting
as trier of fact. This third function of a negligence test overlaps significantly with
its first function (as a fault standard rather than a rule): the more specifically
negligence is pre-defined by an appellate court or a legislature, the less power
the ultimate factfinder has to give content to the standard.
86
The tort and criminal law standards of self-defense are an interesting
example of how negligence can function as a delegation of law-making authority
to another legal body. Such standards typically include both predefined, rule-like
criteria of proportionality and necessity, and also standard-like residual criteria for
And it is possible that those conditions encompass some excuses (e.g, a panicky
reaction to an emergency).
86
In principle, though, the functions are distinct. Imagine a legal system in which an
administrator has authority to adopt whatever normative standard she feels appropriate,
and suppose she adopts a standard of negligence and applies it to the cases before her.
In such a system, the allocation of decisionmaking function would no longer be served,
but the standard v. rule issue would persist.
Page 39 of 57 Simons, Dimensions of Negligence 8/7/02
the reasonableness of the defender’s belief, and, sometimes, for certain
proportionality and necessity issues. Thus, the proportionality criteria for
permissible use of deadly force are often predefined in rule-like form, while the
proportionality criteria for use of nondeadly force are often defined only in terms
of “reasonableness,” effectively delegating this judgment to the trier of fact.
87
The question of the duty to retreat before using deadly force (an aspect both of
necessity and proportionality) is sometimes predefined but sometimes treated as
just an aspect of the delegated issue whether a reasonable alternative means
was available to the actor other than deadly force.
88
The evaluation of the
reasonableness of the actor’s beliefs—that his action was proportional (as
predefined) or necessary—is normally delegated to the fact-finder, though even
here, one could imagine a predefined criterion.
89
The practice of delegating substantial discretion to the factfinder to apply
a vague normative standard of negligence or reasonableness often grants a
largely unreviewable power to create a new legal norm.
90
This practice obviously
raises serious legality concerns, especially in the criminal law. Accordingly, it is
highly desirable to restrict the use of such standards in the criminal law, or to
define them with much greater care. However, this concern is less troubling in
the case of cognitive negligence, for it is often fair to assume that different
factfinders will have similar views about the “reasonableness” of an actor’s
beliefs about a particular matter.
91
Accordingly, permitting the jury to decide, in a
87
In criminal law, see MPC, §§3.04(1), (2)(b), 3.09(2); Dressler, supra note 15=, §18.01.
In tort law, see Restatement (Second) of Torts, §§63, 65, 70.
88
For a good discussion of the alternative approaches, see Bonnie, Coughlin, Jeffries, &
Low, Criminal Law (Foundation Press 1997), p. 352.
89
Somewhat greater predefinition occurs if the negligence criterion refers to the beliefs of
the average (rather than reasonable) person in the community, or to customary practice
(as when medical malpractice depends on whether the doctor possessed customary
knowledge relevant to diagnosing or treating the patient’s medical condition). It also
occurs if a tort standard demands (reasonable) inferences only from facts of which the
defender was actually aware. See note 47= supra (noting the tort concept of “reason to
know”).
90
See Abraham, supra note 62=, at 1190-1199.
91
See Simons, Negligence, supra note 1=, at 88.
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prosecution for negligent homicide, whether the actor created an “unreasonable”
risk of death without providing much guidance about the meaning of that term, is
more troubling than permitting a similarly unguided jury to decide, in a
hypothetical prosecution for a crime of “negligent receipt of stolen property,”
whether the actor “should have realized” that the property was stolen.
D. Create a secondary legal norm parasitic on a primary legal norm
A fourth and highly important function of negligence is to serve as a
secondary legal norm parasitic on a primary legal norm. On this perspective,
conduct negligence amounts to creating a substantial and unjustifiable risk of
violating a primary legal norm. And cognitive negligence amounts to
unreasonable ignorance or mistake about the possibility that one’s conduct is
violating a primary legal norm. In a loose sense, both types of negligence can be
characterized as secondary legal norms against “creating an unreasonable risk”
of violating a primary legal norm.
92
For example, a primary legal norms forbids the unjustified killing of
another. The fault in negligent homicide then consists of the following: creating a
substantial and unjustifiable
93
risk that one will bring about the (unjustifiable)
92
See Hurd, supra note 39=, at 264; Heidi Hurd, Justification and Excuse, Wrongdoing
and Culpability, 74 Notre Dame L. Rev. 1551, 1558 (1999) (“Moral culpability consists in
intending to do an action that is wrongful, knowing that one will do an action that is
wrongful, or failing to infer from available evidence that one will do an action that is
wrongful.”); Moore, supra note 39=, at 411 (“[W]e … blame people for risking that their
actions might be of a wrongful sort even when they do not desire, intend, or believe that
their actions will be of that sort.”); Simester, supra note 48=, at 89 (“The fact that an
action is harmful or to be avoided generates two types of moral reason: a reason not [to
choose] to do that action, and a reason to take care lest that action be done.”)
The statement in the text is a bit loose insofar as cognitive negligence involves
“possibility,” not “risk,” and need not, strictly speaking, involve unreasonable risk-creation.
See text at note 29= supra.
93
It might appear redundant to require, for negligent homicide, both that the actor was
unjustified* in creating the risk and also that the killing he risked was (or would have
been) unjustified**. But the dual requirement (that the risk be unjustified* and the killing
Page 41 of 57 Simons, Dimensions of Negligence 8/7/02
killing of another. Now consider a case involving cognitive rather than conduct
negligence. A primary legal norm forbids nonconsensual sexual intercourse with
another. The “negligence” in negligent rape then amounts to acting in
unreasonable ignorance of (or based on an unreasonable mistake about) the
possibility that the victim does not consent, and thus that one’s conduct is in
violation of this primary norm.
Ordinarily, this parasitic function is a necessary feature of negligence.
94
After all, the reason that unjustifiable risk-creation is blameworthy, or unfair, or
important to deter, is not because risk-creation is itself wrongful, but only
because it can lead to a (primary) wrong.
95
If we have no reason to think that the
“risky” conduct could lead to further harm, the conduct is not really risky at all.
96
be unjustified**) is not redundant. For the first form of lack of justification is broader: it
addresses whether, ex ante, the actor had sufficient reason to create the risk, unlike the
second form of lack of justification, which addresses whether, ex post, the killing itself
was warranted. Thus, an unjustified** killing is one that, ex post, we know was not
warranted (for example, by self-defense, law enforcement, or necessity). In contrast,
whether risk-creation is justified* or unjustified* takes into account that the actor was only
creating a risk of death; and such an act is much easier to justify. For example, if Xavier
rushes his two very sick children to the hospital and unfortunately causes a fatal accident
along the way, he is only justified** in causing the death if both children would otherwise
have died (and perhaps not even then). But it is far more likely that he will be justified* in
speeding to the hospital, notwithstanding the death that he caused.
94
I qualify this assertion because cases of deficient skill are not so obviously parasitic on
wrongdoing. On the other hand, perhaps even these cases are derivative in the relevant
sense. When a surgeon’s hand slips during an operation, the reason she is negligent is
not simply that she was clumsy. It is also critical that, in the actual circumstances, her
clumsiness creates a great risk to another’s health. Put differently: if she were to move
her hand deliberately in precisely the manner that she accidentally moved it, she would
clearly create an unreasonable risk; in this sense, the fault displayed by the accidental
act is derivative of the fault displayed by the hypothesized deliberate act, which in turn is
derivative of the wrongfulness of causing unjustified harm to a patient.
95
To be sure, judging someone to be negligent is a conclusive judgment of fault, whether
or not the negligence results in harm on a given occasion. In this sense, acting
negligently itself seems to violate a primary norm of wrongdoing. But the negligence
judgment also depends on an ex ante judgment about future risks. If there were no
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Indeed, if we all knew to a certainty the results (both beneficial and
harmful) of all of our actions, there would be little need for a negligence
standard.
97
Instead, a varied set of legal norms would undoubtedly develop,
along these lines:
reason to expect a particular type of (allegedly) negligent act to result in harm on any
occasion, the actor would not be negligent.
A separate question is the proper treatment of risky conduct that causes
secondary harms, including fear to potential victims and emotional distress to bystanders
not themselves at risk. These harms are genuine and are sometimes a basis for legal
liability. And, at first blush, liability for causing such harms seems to be a
counterexample to the present “derivative of primary norms” rationale for negligence. On
the other hand, these secondary harms are often insufficient to explain or justify the
severity of such legal sanctions as criminal punishment for attempts or for speeding well
above the speed limit. Rather, the ex ante risk of future harm is also critical to that
explanation; thus, the occurrence of secondary harms does not place a risk outside the
“derivative” rationale under discussion. For example, attempted murder by use of a
normally effective means such as a loaded gun is properly punished more severely than
a malicious practical joke in which the actor points a realistic toy gun at a stranger (or at a
collaborator in the presence of bystanders not privy to the joke). For the latter cases
implicate only secondary harms, while the former also involves a very significant ex ante
risk.
96
Similarly, if we have no reason to think that an actor’s belief that his conduct is legally
permissible (e.g. that the victim is consenting) could possibly be incorrect, then there is
no real possibility that his conduct is in violation of the primary norm.
Of course, it is a distinct question whether an actor should nevertheless be liable
if he thinks his conduct creates a substantial risk of death even though a reasonable
person would not share that belief, or if he thinks that the victim is not consenting even
though a reasonable person would believe that she is.
97
I say “little” rather than “none” because it is possible that some of the other functions of
negligence would still be served in such a world. While all probabilities of injury and
benefit would now be 0 or 1, the relative valuation of the harms and benefits might, within
some range, be left to the normative judgment of a trier of fact applying a
“reasonableness” standard. For example, although the law of this hypothetical world
would undoubtedly include a clear rule about the permissibility of intentionally killing one
innocent to save another, it might not include a rule about the permissibility of a driver, in
an emergency, ruining someone’s rose bushes in order to avoid running his car into a
Page 43 of 57 Simons, Dimensions of Negligence 8/7/02
? Don’t kill a pedestrian unless this is absolutely necessary to save the lives
of several persons being rushed to the hospital.
? Don’t accelerate the death of a patient through a medical procedure
unless the procedure is designed to relieve his unbearable pain.
? Don’t kill a person in self-defense unless he would otherwise cause your
death or permanent and severe disability.
In our actual world, however, both the risks and benefits of actions are
highly uncertain. A negligence standard recognizes the difficulty of such
predictions; permits lower-risk actions to be justified much more readily than
higher-risk actions; and permits a factfinder to consider the qualitative as well as
quantitative aspects of risk analysis.
98
For these and other reasons, the
derivative character of the negligence standard does not mean that negligence
analysis is a simple, mechanical extrapolation from the primary norm. (One
cannot, for example, simply define negligent homicide as a killing in which the
actor should have realized that he created a 2%, or 5%, risk of unjustifiably
causing a death.) Indeed, it is fair to say that most of the difficult and interesting
questions in negligence law do not turn on which harms would be unjustifiable to
cause if we knew for certain that they would ensue. Rather, they turn on when
one might justifiably create a low-level risk of harm even though it is quite clear
that creating a virtually certain risk of the harm would be unjustifiable.
Understanding negligence as a derivative concept also helps explain why
it is so extraordinarily difficult to develop a “formula” for negligence that seems
adequate to capture all relevant considerations. For negligence is simply the
“low-risk” version of all moral and legal norms; yet these norms themselves are
numerous and cannot possibly be encapsulated by any single formula.
99
Thus,
curb and suffering a flat tire. Although one harm or the other will inevitably occur, the
relative value of the two harms might still be determined under a general
“reasonableness” standard.
98
Thus, negligence analysis can: (a) consider such qualitative risk factors as whether the
risk was voluntarily incurred, see Simons, Negligence, supra note 1=, at 71; (b) “launder”
or ignore socially objectionable preferences, id. at 73-74; and (c) consider fair distribution
of risks, as well as their minimization, id. at 82.
99
See Simons, Negligence, supra note 1=, at 61-66; Simons, The Hand Formula, supra
note 1=, at 928-929.
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viewed as a moral concept, negligence is continuous with the rest of action-
guiding morality, including the moral rules that would apply if we were certain
what consequences our actions would bring. If it is categorically wrong to kill one
innocent person to save six, then it is probably wrong to create a 50% risk of
death to one in order to save three. If it is permissible to turn a trolley and kill
three to save four, then it is probably permissible to turn a trolley if this creates a
10% risk of death to three but avoids a 10% risk to four.
100
Yet moral norms,
including the norms that are embodied in law, are plural and complex. We
should thus hardly expect that a single legal norm of negligence will easily
capture this plurality—especially since the “low-risk” version of these norms will
typically impose a weaker constraint, i.e., low-risk conduct is normally easier to
justify than higher-risk conduct).
Because negligence can function as a derivative norm of “risk-creation”
(loosely speaking), it is conceptually possible to impose liability for risk-creation
alone, even if it does not issue in the ultimate, primary harm. To some extent,
the law does so. The Model Penal Code recognizes a crime of reckless
endangerment.
101
Other examples include such traffic offenses as speeding,
driving while intoxicated, or negligent operation of a motor vehicle. Moreover,
many statutory inchoate offenses, while not formally defined in terms of risk-
creation or negligence, are in substance derivative legal norms, since the reason
for punishing the relevant conduct is to avoid a more serious, primary harm.
Burglary and possession offenses are good examples.
102
Attempts are another,
though they typically involve a much higher degree of risk, or a more culpable
state of mind, than negligence.
103
In short, legal norms of negligent risk-creation
100
The continuity is not entirely smooth, however. If a driver speeds to the hospital in
order to save five passengers from imminent death and thereby creates an almost certain
risk of killing a pedestrian, his action is clearly impermissible. But it is not so clearly
impermissible for such a driver to create a 20% risk of killing a pedestrian in order to save
one passenger. See Simons, Negligence, supra note 1=, at 65.
101
MPC § 211.2.
102
See generally Douglas Husak, The Nature and Justifiability of Nonconsummate
Offenses, 37 Ariz. L. Rev. 151 (1995).
103
Attempted murder, for example, is a crime parasitic on the primary wrong of
committing an unjustified killing. There is nothing wrong with trying to kill someone,
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(or negligent ignorance or mistake), insofar as they are parasitic on primary legal
norms, actually share this characteristic with a much broader category of
inchoate crimes. Still, it is sensible to identify the parasitic function of negligence
as a distinctive characteristic of the negligence concept, for negligence is almost
always defined by reference to a primary harm.
E. Distinguish grades of fault
Last but not least, a negligence criterion very often performs the function
of distinguishing grades of fault. A legal system might only recognize one grade
of fault, but often it recognizes some categories of strict as well as fault liability,
or it recognizes numerous categories of fault. This section will explore three
features of this grading function.
First, consider the distinction between negligence and strict liability. A
negligence standard might be employed as a necessary condition for legal
liability, whether in tort, criminal law, or another area of law. Strict liability would
then be excluded.
104
The American legal system is not this firmly committed to a
fault perspective. However, American tort law does treat negligence as normally
sufficient for legal liability, at least with respect to physical harms; by contrast, it
views strict liability as somewhat exceptional, and limited to a set of particular
rules.
105
except—and it’s a rather significant “exception”!—that one might well succeed. See Heidi
Hurd, What in the World is Wrong?, 5 J. Crim. L. & Criminol. 157, 193-195 (1994).
104
In Canada, strict criminal liability violates the national constitution if imprisonment is
authorized for the crime. Reference re Motor Vehicle Act (British Columbia) S 94(2), 2 S.
C. R. 486 (1985).
105
See Draft Restatement (Third) of Torts, Ch. 4, Scope Note, p. 291.
Moreover, even when strict liability is recognized as a possible basis of liability, a
negligence standard performs the important function of differentiating fault from non-fault.
Just where this distinction is drawn can be significant. In criminal law, the penalties for
negligence might exceed those for strict liability. In tort law, although characterizing an
actor’s tort as involving fault rather than strict liability does not, by itself, affect the size of
the compensatory damage award, it has some doctrinal consequences—for example, it
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The border between negligence and strict liability is hotly contested. In
products liability, for example, much ink has been spilled over the question of
what types of product “defects” should incur liability, and much of the debate is
about whether, and in what sense, defectiveness should depend on a showing of
fault. More subtly, one might question whether certain aspects of the negligence
standard itself are genuinely “fault”-based. Thus, the objective “reasonable
person” test for adults ignores whether they lack ordinary capacities of
intelligence and mental competence, in apparent violation of the maxim that
“ought implies can.” Also, the reasonable person test, as actually employed,
probably requires a superhuman ability to act with due care on all occasions
(e.g., requiring a driver’s attention never to waver), again suggesting that a
pocket of strict liability exists within the nominal domain of fault-based negligence
liability.
106
Second, a negligence standard is conventionally the least culpable or
serious form of genuine fault in any liability system that recognizes multiple
degrees or types of fault. Establishing a hierarchy of fault or culpability is
especially important in the criminal law, given the desirability of imposing
punishments proportional to culpability.
But if proportionality of this sort is to be achieved, it is critical to identify
the relevant conception or conceptions of negligence to which more serious
types of fault are to be compared. And here, the conventional Model Penal Code
hierarchy leaves much to be desired.
107
That hierarchy, you will recall, considers
the following forms of culpability increasingly serious: strict liability; negligence;
recklessness; knowledge (i.e., awareness that a result is practically certain to
occur or that a circumstance is highly probable); and purpose.
may increase the faulty actor’s comparative share of responsibility. See Restatement
(Third) of Torts, Apportionment of Liability, §8.
106
See Draft Restatement (Third) of Torts, §3, comment k.
107
For a thorough exploration of this point, see Simons, Rethinking Mental States, supra
note 9=.
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Consider the following paradoxical example, illustrating the inadequacy of
the conventional hierarchy. Suppose “negligent driving” is a crime.
108
A
negligent driver might be less culpable than a reckless driver, insofar as the latter
but not the former is aware of the substantial risks posed by his manner of
driving. So far so good. But now compare someone who “knowingly” or
“purposely” drives. Although these culpability terms rank higher in the
conventional hierarchy than negligence or recklessness, a knowing or purposeful
actor is obviously less, not more, deserving of punishment than a negligent or
reckless driver. After all, knowing that one is driving imports no culpability at all.
Why might negligent and reckless drivers (who are supposedly lower on
the culpability hierarchy) deserve some criminal punishment, while a knowing
driver clearly does not? Because “driving” can be restated as “causing the
operation of a motor vehicle”; and negligence and recklessness, when applied to
such a result, both embody an evaluative judgment, all things considered, that
one should not drive in that manner. Both forms of culpability entail lack of
justification. But knowledge and purpose are different in these respects: both are
descriptive, not evaluative, culpability terms, and neither entails lack of
justification.
109
108
The analysis above considered “result” and “circumstance” elements of a crime. The
crime of “negligent driving” implicates a third type of offense element recognized by the
MPC—namely, a “conduct” element. Other examples are “breaking and entering” in the
crime of burglary, or “exceeding the speed limit” in the crime of speeding. Such elements
are probably best analyzed in the same manner as explicit result elements (or,
sometimes, as circumstance elements). Implicitly, “conduct” elements require an actor to
perform some basic act or acts and thereby engage in, or cause, the statutorily defined
“conduct.” Consider “negligent driving.” If you enter a car, turn the ignition, and press the
accelerator, you will be “driving” the car. More precisely, we might say that your “driving”
is the result of your basic acts, i.e., that “driving” requires you to perform basic acts that in
turn cause the operation of a motor vehicle. See Michael Moore, Act and Crime: The
Philosophy of Action and Its Implications for Criminal Law, Ch. 8 (1993).
109
Contrast a crime of speeding, defined as “operating a vehicle in excess of the speed
limit.” Here, with respect to the element “in excess of the speed limit,” the MPC hierarchy
more plausibly applies. One who purposely or knowingly exceeds the speed limit is
ordinarily more culpable than one who recklessly or negligently does so. (Again,
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The crime of homicide also exhibits these differences, but much less
dramatically. Negligent and reckless killings are, by definition, unjustified acts;
the inquiry into justification precedes the finding of fault. By contrast, knowing
and purposeful killings might or might not be justified, depending on whether
such defenses as self-defense or lesser evils apply. The “knowing driving”
example is more striking than “knowing killing,” however, because driving is not a
prima facie unjustifiable act, as killing is. Obviously, bringing about the death of
another is an act that demands a strong justification. If one knowingly or
purposely brings about that result, then the burden of production or proof on
justification might shift to the actor, and available justifications themselves will be
limited in scope. But if one knows only that one has created a low-level risk of
bringing about the result (i.e., one is “reckless” in the Model Penal Code sense),
or if one merely should be aware of such a risk, then it makes some sense not to
shift the burden of proof and not to limit unduly the scope of possible
justifications.
These examples illustrate that it is a mistake directly to compare
culpability categories when some include lack of justification as part of their
definition but others do not. The solution? A careful ceteris paribus approach.
But that, in turn, requires carefully distinguishing the different types of negligence
and fault, so that the hierarchy of fault directly compares only those categories of
fault that are genuinely comparable.
Thus, any hierarchy of culpability categories that employs negligence as
one category must carefully identify which conception of negligence it has in
mind. When cognitive negligence is the relevant meaning, then the Model Penal
Code hierarchy usually work well. Holding everything else constant, one can
directly compare an actor who should be (but is not) aware that a victim is not
consenting, with one who recklessly suspects that she might not consent—and,
further “up” the hierarchy, with one who knows that she does not consent., and
finally, with one who hopes that she does not.
110
however, the knowing or purposeful actor might have a defense of justification, while the
reckless or negligent actor is necessarily unjustified.)
110
Even higher up the hierarchy is the actor who “hopes” that the victim does not
consent. In MPC terminology, such an actor is purposeful but not knowing as to that
circumstance element. MPC, §2.02(2)(a) & (b). It is doubtful, however, that the conative
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However, when conduct negligence is the relevant meaning, then the
hierarchy sometimes fails to work, as we have seen in the “negligent v. knowing
driving” example. Part of the difficulty is this: if the legal norm specifies a type of
conduct (such as “operating a motor vehicle”) that is not presumptively
unjustifiable, then even if we require that the specified conduct occur “knowingly”
or “purposely,” these descriptive culpability terms do not change the status of the
conduct. By themselves, they do not transform morally neutral conduct into
conduct that presumptively needs justification.
On the other hand, conduct negligence can more readily be employed
within a defensible hierarchy of fault if the hierarchy focuses on the degree of
unjustifiability of the conduct, not on the actor’s beliefs or intentions. Thus, in tort
law, the distinction between ordinary and gross negligence is perfectly
defensible, insofar as the latter represents a more serious departure from the
standard of due care or from the conduct that a reasonable person in the
circumstances would observe.
111
The Model Penal Code, by combining cognitive and conduct negligence,
inevitably makes it doubtful that any single hierarchy of fault will suffice.
112
In
principle, the best approach would be to disentangle the distinct features
embedded within “negligence” and “recklessness” as those culpability terms are
mental state of hope should invariably be ranked as more serious than the cognitive state
of belief. See Simons, Rethinking Mental States, supra note 9=.
Moreover, even if we limit our attention to cognitive states, the single hierarchy is
problematic. See note 82= supra (describing situations in which cognitive negligence can
be as culpable as recklessness); Husak, The Sequential Principle of Relative Culpability,
supra note 17=, at 508.
111
See Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on the Law of Torts 211-
212 (5
th
ed. 1984); Dobbs, supra note 5=, at 349-352. Note that the Learned Hand
formulation of negligence makes it relatively easy to conceptualize gross negligence—as
a case in which the burden of taking a precaution is much less than the risk-reduction
benefits of taking a precaution.
112
Indeed, I have endorsed a tripartite hierarchy, with separate hierarchies of belief
(embracing knowledge, the cognitive dimension of MPC recklessness, and cognitive
negligence), desire (embracing intention and the “culpable indifference” sense of
recklessness), and conduct (embracing gross negligence and ordinary negligence). See
Simons, Rethinking Mental States, supra note 9=.
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often used. If negligence is meant to convey both conduct and cognitive
negligence, it is worthwhile to separate these out. Similarly for recklessness,
which is often intended to convey both conduct negligence and awareness of a
risk.
Similar difficulties undermine any contention that American tort law
reflects a unified hierarchy of fault. American tort law does not contain the
multiplicity of grading distinctions that characterize American criminal law. But it
does broadly differentiate three kinds of torts—intentional, negligence, and strict
liability. This differentiation creates the appearance of a single, very general
hierarchy of fault. Unfortunately, the appearance is an illusion. Thus, with
respect to causation of physical harm, it is tempting to assume that the
intentional tort of battery identifies the most serious form of fault, knowingly or
purposely causing physical harm, while negligence identifies a less serious
form.
113
And the Draft Restatement (Third) of Torts contains language to this
effect.
114
Yet the type of intentional “harm” that the tort of battery protects against
is not the intentional infliction of physical harm, or even offense, to another.
Rather, battery protects against the nonconsensual intentional interference with
the victim’s bodily integrity, i.e. against nonconsensual intentional “touchings.”
115
(This explains, for example, why a medical operation beyond the scope of the
actor’s consent is a battery. In such a case, the doctor can be liable without any
113
Tort “recklessness” is an intermediate category. Relative to negligence, it requires
that the conduct be more clearly unjustifiable, and it requires awareness either of the risk
or of the facts that should make the risk obvious. See Draft Restatement (Third) of Torts,
§2.
114
Thus, §5 provides: “An actor who intentionally causes physical harm is subject to
liability for that harm”; and comment a states that this rule “provides a framework that
encompasses many of the specific torts described in much more detail in the
Restatement Second of Torts,” including harmful battery. This suggests, misleadingly,
that battery requires an intent to cause physical harm, rather than an intent to cause
contact that, as it turns out, is harmful.
115
See Dobbs, supra note 5=, at 52-53. Although “harmful” batteries require physical
harm, the harm need not be intended or known to be a likely consequence of the
touching. And, of course, merely “offensive” batteries are also recognized. Id. at 53.
Page 51 of 57 Simons, Dimensions of Negligence 8/7/02
intent to cause harm or offense.
116
) Accordingly, the object of the intentional tort
of battery is different from the object of the general tort of negligence, and the
torts are not directly comparable. Granted, tort law sometimes treats intentional
risk-creation or causation of harm more seriously than negligent risk-creation or
causation of harm.
117
But too often the tort hierarchy of fault is articulated in a
way that compares apples and oranges, in which case the hierarchy is
unpersuasive.
A third and last variation of the grading function of the negligence
standard deserves particular note: the use of negligence to increase the grade of
a legal wrong. I have been assuming that the negligence in question marks a
distinction between fault liability and strict (or no) liability. Yet sometimes, and in
criminal law especially, negligence differentiates lesser and greater wrongs.
Thus, negligent homicide is a crime, while non-negligent causation of death is
not. But if assault on a police officer is a more serious crime than simple assault,
and if negligence as to the victim’s status as a police officer is the culpability
required for guilt of the more serious offense, then negligence performs this third
function.
118
When negligence performs this grade-increasing function, the meaning of
“negligence” should again be sensitive to the context. The question is not simply
whether, in the abstract, the person committing the assault should have realized
that his victim was a police officer. Rather, the more seriously the law views the
circumstance in question, and the more obvious the risk should be in light of the
other offense elements that the actor must satisfy, the more readily one can
criticize the actor’s cognitive negligence in failing to appreciate the incriminating
circumstance. And, by way of contrast, whether a passive bystander to the
assault who is paying little attention to the affray “should have realized” that one
116
See Mohr v. Williams, 105 N.W. 12 (Minn. 1905).
117
See note 2, supra.
118
For example, under Virginia law, simple assault is a Class 1 misdemeanor, while
assault of a police officer is a Class 6 felony; and conviction of the latter requires that the
actor know or have reason to know that the victim was a police officer. Va. Code Ann.
§18.2-57 (A), (C) (2001).
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of the participants was a police officer is a completely different question. (It is not
clear that the bystander deserves even moral blame.)
But the context is also relevant in a special way when negligence is
employed to increase the grade of an offense. For the very fact that the actor
has committed a lesser crime affects the justifiability of his taking risks of
committing an even greater crime. A prominent example here is the crime of
felony murder. If an actor commits an inherently dangerous felony and thereby
accidentally causes a death, he is often treated as harshly as one who intends to
cause a death. (Suppose X and Y, who is carrying a loaded gun, rob V; if the
gun accidentally discharges, killing a bystander, both X and Y might be liable for
felony-murder.) Although the traditional felony murder doctrine is, I believe,
much too harsh, a modest version of the doctrine is defensible. Specifically, an
actor who commits a dangerous felony, and who is also negligent as to the risk of
death arising from such a felony,
119
may justifiably be treated as harshly as a
different actor who has not committed a felony but recklessly causes a death,
120
and more harshly than a third actor who has not committed a felony but
negligently causes a death. The rationale is that the underlying conduct that led
to a death—commission of a serious felony—is both dangerous and seriously
culpable.
121
An alternative approach that analyzes the question of “negligence as
119
Some jurisdictions applying the felony-murder rule explicitly require negligence as to
the resulting death. Most do not, however. See Guyora Binder, Felony Murder and
Mens Rea Default Rules: A Study in Statutory Interpretation, 4 Buff. Crim. L. Rev. 399
(2000).
Moreover, if the jurisdiction specifies that the underlying felony, or the
circumstances under which it is committed, must be dangerous, and if the definition of
dangerousness is narrow and clear enough, then that alone might suffice to demonstrate
the actor’s negligence as to resulting death, and an explicit negligence culpability
requirement might be unnecessary.
120
Paul Robinson and John Darley, in their interesting study of popular views about
deserved punishment, find that those surveyed would endorse a “felony-manslaughter”
rule in place of a “felony-murder” rule. That is, survey participants believe that when
death occurs in the course of a felony, the felon deserves a level of punishment
corresponding to reckless manslaughter, not to knowing or intentional murder. Paul
Robinson & John Darley, Justice, Liability and Blame 169-181 (Oxford 1995).
121
See Simons, Strict Liability, supra note 36=, at 1121-1125.
Page 53 of 57 Simons, Dimensions of Negligence 8/7/02
to death” in isolation from this context arguably fails to impose a sanction that is
proportional to the seriousness of the felon’s acts and culpability.
122
VII. Conclusion
Conduct and cognitive negligence, I have suggested, are fundamentally
distinct conceptions. What an actor should do is a different inquiry from what an
actor should believe. At the same time, the conceptions are often employed in
conjunction, especially in criminal law; and the conduct conception ordinarily
does presuppose reasonable foresight of risk, which is a cognitive concept.
Moreover, legal standards explicitly or implicitly recognize other types of
negligence as well—for example, deficient self-control.
This essay also identifies five significant institutional functions served by a
legal negligence standard. These functions reveal the distinctive significance of
negligence, but also disclose some problems that the use of such a legal
standard can pose.
The analysis of these different dimensions of negligence clarifies certain
misconceptions, and has some important implications:
? The question whether “negligence” is an appropriate minimum standard
of liability (e.g., for criminal punishment) is ill-formed. One cannot
analyze the desirability of “negligence liability” in the abstract without
considering its type (conduct or cognitive) or its role in norm-definition (as
122
A similar issue arises in determining how mistakes as to justification should be graded.
The Model Penal Code adopts an “equivalence” approach, whereby an actor who makes
a negligent mistake in assessing the need to use deadly force is guilty only of negligent
homicide, while the actor who makes a reckless mistake is guilty of reckless homicide.
MPC, §3.09(2). Whether this approach is sound is an open question. Some would view
a negligent mistake in the context of knowingly and intentionally using deadly force
against another (a mistake relevant to justification) as more seriously culpable than a
negligent mistake about whether a driving maneuver will cause another’s death (a
mistake relevant to the prima facie case). The Code’s equivalence approach might, in
the end, be defensible, but it does need normative defense. Not all negligent mistakes
Page 54 of 57 Simons, Dimensions of Negligence 8/7/02
a general standard of liability for harm-creation, or instead as an
interstitial standard applying only to some elements of a crime or wrong).
? Negligence is more pervasively employed in the law than one might
realize. It sometimes take the form of an inchoate crime of risk-creation.
And it sometimes takes the form of a relatively clear and predefined rule.
? Comparing negligence to supposedly “more serious” forms of fault, such
as recklessness, knowledge, and purpose, is treacherous. Depending on
the type of negligence, as well as the type of recklessness or other fault,
this might amount to comparing apples and oranges.
? Defining negligence in purely cognitive terms (i.e., simply as
unreasonable failure to be aware of a risk) is often inadequate, for the
legal norm often also demands that the actor has created an
unreasonable risk or has failed to take a reasonable precaution.
? Negligence need not be understood as failing to exercise the care that a
“reasonable person” would exercise.
? Negligence ordinarily identifies a type of fault that is derivative of a
primary wrong or harm.
Finally, although this paper has not focused on the different possible
normative rationales for negligence liability, I offer a few thoughts about the
relation between such rationales and the dimensions of negligence that the paper
more directly addresses.
First, there is no direct relationship between the normative rationale for
negligence liability and the choice of a cognitive or conduct conception of
negligence. Under an economic and deterrent rationale, for example, a cognitive
test might be useful in calibrating the actor’s amenability to deterrence, but a
fairness rationale might also employ a cognitive test, as reflecting the actor’s
degree of fault or culpability.
123
Of course, the precise formulation and content of
any negligence test (e.g., whether it is defined in terms of costs and benefits or in
are necessarily the same; the context of a negligent mistake can be critically important to
deciding what degree of culpability the mistake exhibits.
123
For further thoughts along these lines, see Simons, Rethinking Mental States, supra
note 9=, at 495-515.
Page 55 of 57 Simons, Dimensions of Negligence 8/7/02
terms of the reasonable person in the community) will reflect its normative
underpinnings.
Second, the five different functions of legal negligence standards
discussed above are also not directly dependent on the normative rationale for
negligence liability. Still, some relationships do exist between the rationale and
certain of those functions.
An economic approach is likely to emphasize deterrence of negligent
behavior. Accordingly, advocates of this approach will be concerned about the
inefficiency and imprecision of standards relative to rules, and about the
unpredictability of a legal negligence standard if a trier of fact has the largely
unreviewable power to define its content. On the other hand, a broader utilitarian
approach might give significant weight to the norm-reinforcement achieved when
the community expresses its disapproval of faulty conduct, even if that
disapproval is conveyed in vague “unreasonableness” terms.
From a corrective or retributive justice perspective, the standard-like
articulation of negligence might better express the meaning of fault; and, on
many accounts, it is fault that justifies a tortfeasor’s duty of repair to a wronged
victim as well as the state’s right (or duty) to punish a wrongdoer.
The choice of normative rationale seems to bear only a slight relationship
to the desirability of negligence’s personification function. This is so whether the
point of this function is merely rhetorical, or instead is to explain that deficient skill
can be negligent, or to facilitate individualization, or to rationalize excuse.
Finally, the last two functions—creating a secondary legal norm parasitic
on a primary one, and distinguishing grades of fault—again do not seem to
depend directly on the choice of normative justification. Of course, the precise
ways in which fault is actually defined, graded and sanctioned clearly will and
should depend on the underlying normative rationale. Thus, with respect to the
types of inchoate risk-creation that should give rise to legal liability, we might
conclude that a largely undeterrable but very dangerous individual deserves
significant punishment under a retributive rationale but not under a utilitarian one.
* * *
The dimensions of negligence are many. A better understanding of the
difference between conduct and cognitive negligence, and of the distinctive
institutional functions of a legal negligence standard, should facilitate the
Page 56 of 57 Simons, Dimensions of Negligence 8/7/02
Page 57 of 57 Simons, Dimensions of Negligence 8/7/02
development of more coherent, and more justifiable, fault criteria in criminal law,
torts, and other legal domains.
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