ABSTRACT
This chapter presents an egalitarian reformulation of the standard of care. It explains why it is important from a normative perspective to incorporate egalitarian sensitivity into the concept of negligence. The desert-based and equality-based justifications of egalitarianism show a strong preference toward incorporating egalitarianism into the standard of care analysis. Egalitarian reformulation of standard of care analysis advocates a comparison of the parties’ disutility from bearing the loss as one consideration in deciding whether the defendant’s activity was negligent. Incorporating egalitarian considerations into standard of care analysis also fits with broader tendencies in tort law and private law that reveal limited attentiveness to needs and equality considerations. The social value test is a natural vehicle for including egalitarian considerations in the standard of care. Courts are ready to admit that the standard of care is normative rather than empirical, that the reasonable person is the court, and that the court sets the required standard of care.
