ARTICLE: WHY ARE PEOPLE NEGLIGENT?

TECHNOLOGY, NONDURABLE
PRECAUTIONS, AND THE MEDICAL MALPRACTICE EXPLOSION.

WINTER, 1988
82 Nw. U.L. Rev. 293

Author
Mark F. Grady *

Excerpt
I. INTRODUCTION

Negligence law is fundamentally a creature of technology; really, it is the common law's response to
technology. Advances in technology can easily cause corresponding increases in the number of negligence
claims. Revolutions in an industry's technology will often impose tremendous new loads on the negligence
system. The current explosion of medical malpractice claims 1 may be an example of this type of crisis.

This Article will develop these ideas in the traditional way, but the best introduction to them might be the
Walt Disney version. In scene one, Goofy is an American colonial walking down a country road. Even when
he is quite inadvertent (maybe he is smelling a flower with a bumblebee inside), he causes little negligent
harm. Next, our hero is a teamster in old New York. With the same inadvertence as before (is that piano
wagon connected to the horses?), Goofy causes more negligent harm. In the last scene, Goofy is driving an
18-wheel rig down an interstate highway. With advanced technology, slight amounts of inadvertence can
produce disastrously large quantities of negligent harm. Luckily, inadvertence does not always lead to
negligent harm, but it is much more likely to do so if people are using technology.

Some of these ideas are new to the economic theory of tort, because this theory makes the very existence
of negligence claims something of a puzzle. 2 Under the economic Learned Hand formula, courts impose
liability only when the defendant has stopped at ...