A Theory of Negligence

Negligence--the failure to exercise the care of an ordinarily prudent and careful man-has been the dominant standard of civil liability for accidents for the last 150 years or so, in this as in most countries of the world; and accident cases, mainly negligence cases, constitute the largest item of business on the civil side of the nation's trial courts. Yet we lack a theory to explain the social function of the negligence concept and of the fault system of accident liability that is built upon it. This article attempts to formulate and test such a theory, primarily through a sample of 1528 American appellate court decisions from the period 1875-1905.