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 actors conduct. A negligent actor is one who should be aware of a substantial and unjustifiable risk (emphasis added). 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. 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 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 31MPC§202(2)(d) 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 actors 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 The commentary to MPC $2.02 explicitly distinguishes these two aspects of negligence. See MPC $2.02 commentary at 241(ALl 1985) Page 15 of 57 Simons. Dimensions of Negl 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 ). 4 However, a purely cognitive conception necessarily applies when negligence pertains to a circumstance element of a crime(such as a victims 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. 5 Thus, if rape requires that the actor be negligent as to the victims nonconsent, then the actor's negligence consists solely in his bly 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 The conduct-plus-cognitive definition also applies when Model Penal Code recklessness"applies to a result element, because the mPc definitions of recklessness nd negligence contain the same requirement of unjustifiable risk-creatic 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 nonconsensual forcible intercourse with another (apart from narrow criminal law defenses) Page 16 of 57 Simons. Dimensions of Negl 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 ver 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. 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 friends 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. See Kenneth W. Simons, When is Strict Criminal Liability Just?, 87 J. Crim. L.& Criminol.1075,1093,112324(1997) 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 Negl 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 actors 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 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 ClDJefendant'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 plaintifi's way and 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 thar 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 Simons. Dimensions of Negl 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 drivers 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 Simons. Dimensions of Negl 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