The most compelling defense of the standard of reasonable care in negligence law casts itself in terms of equality. This commitment to equality may paradoxically turn out to be flatly inegalitarian. This is because it discriminates against the less capable through ignoring their deficient capabilities (and so against their chances of meeting the standard of reasonable care successfully). A promising, though still unfamiliar, way to revive the egalitarian aspirations of reasonable care would be to show that imposing the standard of reasonable care even on the less competent expresses, rather than inhibits, a true devotion to equality. I seek to make this showing, and thus to reclaim for this standard of care its egalitarian foundations more adequately than has so far been proposed.
Date of this Version
Avihay Dorfman, "Reasonable Care: Equality as Objectivity" (January 2012). Tel Aviv University Law Faculty Papers. Working Paper 163.