IN DEFENSE OF REASONABLENESS: A CRITICAL ANALYSIS OF MONOLITHIC THEORIES OF TORT LIABILITY

[摘要] A number of proposed theories of tort liability are ;;monolithic;; in that they seek to explain tort liability by focusing on a single element or concern of the tort situation. Four different monolithic theories of tort liability will be discussed in this work: personal moral culpability liability; strict or absolute liability; liability based on utility and, more specifically, economic liability; and liability based on reciprocity of risk between the parties. The narrow scope of each of these theories renders them susceptible to both internal and external criticism--they are, variously, internally inconsistent and incoherent and they lead to unacceptable results in tort decisions. Liability based on a standard of reasonableness which permits and requires a consideration of a variety of individual and community interests in making a tort decision is to be preferred to any of these monolithic theories. A theory of liability based on reasonableness is in accord with and serves to correctly explicate the majority of decisions in reported tort cases. Furthermore, a theory of liability based on reasonableness dispels the supposed antithesis between liability with fault and strict liability.

[发布机构] Rice University