Tort Law, Accident, and Negligence

By

Anthony J. Fejfar, B.A., J.D., Esq., Coif

© Copyright 2009 by Anthony J. Fejfar

Some people have a difficult time understanding the Tort Law of Negligence. One

reason for this is that the Classical definition of Accident is not the same as a Negligent

Accident. In Classical Greek philosophy, everything that happens in the Material

Universe is based upon random accident. Most of us do not live in that Universe

anymore because it is too uncertain. Instead we shift into a Metaphysical Universe where

there are Necessary Causes or Natural Laws at work which structure the Universe. In

this Universe, there are relatively few, or maybe even no Accidents, in terms of reality, as

such. In the Tort Law of Negligence, it is assumed that we live in a Universe where

some accidents take place randomly. Not all accidents result in a finding of Negligence,

however. If an accident happens as a matter of a purely random occurrence which could

not be reasonably avoided, there is no Negligence and no Tort Liability. We develop

laws which are designed to decrease the probability of a harmful accident from

happening. Thus, at a street intersection with cars approaching the intersection at 90

degree angles, from an intersecting street, the Rules of the Road state that a driver must

yield to a car coming down a intersecting street from the right hand side. This avoids

collisions in the intersection. Tort Law provides damages against those who act

unreasonably. Thus, if a driver were to drive through an intersection without yielding to

a car coming from the right, and there was an accident, then the driver would be liable in

negligence for failing to yield. Failing to yield, would be unreasonable, negligent

behavior. If there was no law requiring a car to yield at an intersection then each driver

would have a duty to act reasonably by slowing down and proceeding cautiously through

the intersection to avoid an “accident” from taking place. Typically, the required

reasonable behavior requires conduct which reduces the probability that an accident will

take place. However, since my autonomy is affected by the reasonable rule, there should

be a reasonable or rational requirement as to the rule itself. Yielding to the car on the

right at an intersection is an example of such a reasonable rule. Finally, it should be

noted that the idea of some sort of Strict Determinism is rejected. Reality involves

probability. Quantum Physics proves this.