Strict Liability and the Mitigation of Moral Luck

THE PHENOMENON OF accidental injury appears in both Bernard Williams' and Thomas Nagel's foundational articles on the problem of "moral luck." (2) That appearance is hardly surprising: Liability for accidental injury turns quite heavily on "elements which are essential to the outcome but [which] lie outside the control" of those who may be held liable--on "moral luck" as Williams defines it. (3) Nagel drives this point home with an example of a "truck driver who accidentally runs over a child"--an example he borrows and adapts from Williams: The driver, if he is entirely without fault, will feel terrible about his role in the event, but will not have to reproach himself.... However, if the driver was guilty of even a minor degree of negligence--failing to have his brakes checked recently, for example--then if that negligence contributes to the death of the child, he will not merely feel terrible. He will blame himself for the death. And what makes this an example of moral luck is that he would have to blame himself only slightly for the negligence itself if no situation arose which required him to brake suddenly and violently to avoid hitting a child. Yet the negligence is the same in both cases, and the driver has no control over whether a child will run into his path. (4) As this example makes plain, luck is endemic to negligence liability. Liability in tort normally requires harm done and--when risk of injury is at issue--whether harm flows from careless conduct is normally a matter of luck quite beyond the control of the careless party. Jeremy Waldron begins a paper entitled Moments of Carelessness and Massive Loss, (5) with the following story: Two drivers, named Fate and Fortune, were on a city street one morning in their automobiles. Both were driving at or near the speed limit, Fortune a little ahead of Fate. As they passed through a shopping district, each took his eyes off the road, turning his head for a moment to look at the bargains advertised in a storefront window. (The last day of a sale was proclaimed, with 25 percent off the price of a pair of men's shoes.) In Fortune's case, this momentary distraction passed without event. The road was straight, the traffic in front of him was proceeding smoothly, and after a few seconds he returned his eyes to his driving and completed his journey without incident. Fate, however, was not so fortunate. Distracted by the bargain advertised in the shoe store, he failed to notice that the traffic ahead of him had slowed down. His car ploughed into a motorcycle ridden by a Mr. Hurt. Hurt was flung from the motorcycle and gravely injured. His back was broken so badly that he would spend the rest of his life in a wheelchair. Fate stopped immediately of course to summon help, and when the police arrived he readily admitted that he had been driving carelessly. When Hurt recovered consciousness in [the] hospital, the first thing he did was instruct his lawyers to sue Fate for negligence. Considering the extent of his injury, the sum he sought was quite modest--$5 million ... But modest or not, it was sufficient to bankrupt Mr. Fate.... (6) The general problem of moral luck--that responsibility is profoundly affected by factors beyond the control of the person held responsible--has two distinct dimensions in the case of accidental injury (and no doubt in many other cases). One dimension is concerned with attribution of moral blame: "If one negligently leaves the bath running with the baby in it, one will realize, as one bounds up the stairs toward the bathroom, that if the baby has drowned one has done something awful, whereas, if it has not, one has merely been careless." (7) How badly one has behaved and hence how much one should be blamed turns on consequences beyond one's control--on luck. The other dimension concerns the existence and extent of one's responsibility for having done harm, one's obligation to someone harmed to make amends for or repair the harm done. …