Negligence and accommodation

Whereas the Restatement of Torts and leading economic and justice-based approaches to explaining the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively fixed amount of care, whereas plaintiffs are generally assessed using a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant's negligence with a favorable assessment of plaintiff's negligence, means that the victim gets to fix the terms of the interaction. This argument resonates with the powerful egalitarian idea of accommodating, rather than overlooking, relevant differences; different treatment is necessary for the duty of reasonable care to give effect to the qualitative difference between the plaintiff's life and limb and the defendant's autonomy. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, or to relate as substantive equals.