The Future of Negligence in Accident Law

Abstract

Outside the field of work injuries, negligence is certainly the dominant concept in accident law today, but the future of its dominance is by no means as clear as it must have seemed at the turn of the century. The sources of doubt are several. For one thing, social insurance legislation may engulf the whole, or a large part, of the field of accidental bodily injury law. If it does, the legislation might take the form of comprehensive social insurance for disability from any source, as part of the attack on the general problem of poverty. Or, it might take some form of enterprise liability, as workmen's compensation did, such as that proposed for motor vehicle accidents by Keeton and O'Connell. There is also the possibility that strict liability may further supplant liability based on fault through the common-law process by judicial decision, as it has already done to some extent in the fields of extrahazardous activities and products liability. The first question I shall explore is the effect each of these possible developments would be likely to have on the concept of negligence. Then I shall try to assess briefly the likelihood that such a development will take place.