Joseph Raz (Columbia Law School and Oxford University) has posted Responsibility & the Negligence Standard on SSRN. Here is the abstract:
The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.
And from the paper:
To understand the nature of responsibility-based liability we need to
understand the role of responsibility (in the relevant sense of the term) in our life
and in our practical thought. Responsibility opens agents and their conduct to a
variety of assessments, making various attitudes people may have to themselves and
to others appropriate. An account of responsibility would explain both for what kinds
of assessment and attitudes is being responsible a condition, and why? Much
discussion focuses on responsibility being a condition for moral praise or moral
blame. But the preoccupation with praise and blame, natural in our blame society,
misses the central role of responsibility. We need to bear in mind the full range of
evaluations for which responsibility is a condition. I will not be able to do so. But
reflection on liability for negligent harm, being responsibility-based and not being
subject to excuses, applies also to cases which do not warrant blame, thus helping to
break the mesmerizing fascination with responsibility as a condition of nothing but
praise and blame.30
A comprehensive account of responsibility distinguishes between basic and
derivative responsibility, the latter being responsibility for one thing deriving from responsibility for another. Negligence involves derivative responsibility: People are responsible for negligent harming because they are responsible for breach of a duty of care. For example, having failed to check the condition of my brakes, as was my duty, I accidentally rear-end the car ahead. The accident was due to the omission. I am in breach of my duty of care, and because of that also in breach of the duty not to harm negligently. But, as we know, my liability depends not only on wrongful action, but on wrongful action for which I am responsible. Rear-ending the car ahead was accidental. So why am I responsible for it? This is where a derivative principle comes in. It has the form: If one is responsible for action A, and if by doing A one does B (which is the bringing about of some consequence), then one is responsible for B provided the actions meet certain conditions. This derivative principle extends responsibility beyond the reach of the Guidance Principle. Can that be justified? It all depends on the condition which extends agents’ responsibility for the first action to the second one.
The condition is that avoiding that consequence was the rationale of the duty
not to perform A (which is therefore “a duty of care”).31 Moreover, the rationale of
the duty of care was obvious to those subject to the duty. I do not mean that they
either knew or could readily know its precise content, or that they accepted it as
sound. I mean that given the circumstances they could have easily known that they
were subject to a duty of care, i.e. one designed to protect against some outcomes. I
will shortly explain why in such circumstances if agents are responsible when they
know of the duty they are also responsible if they could easily know about it.
This principle, which is relied upon by the Negligence Standard, is a
moderate extension of the Guidance Principle by which people are responsible for
the foreseen consequences of their actions. Here the foreseen consequence is the
breach of duty not to negligently harm. The principle is extended to cover responsibility for the breach even if it was not foreseen (because the agent was not
aware of the duty) provided it could easily have been foreseen, and to consequences
of that breach which the duty was meant to prevent. There is much to say about the
justification of this extension, but I will leave matters here. For an unresolved
question awaits us: by the derivative principle I am responsible for the accident only if I am responsible for breach of duty of care. My breach consisted in an omission, in the failure to check the brakes. Why am I responsible for that? The derivative principle does not help us here.
Highly recommended!