Posner and Comparative Fault

February 28, 2006

[Editor’s note: This excerpt makes reference to the following cast. The Adamses own the motel that Susan was staying at while visiting her fiance Michael. Susan awoke to someone knocking on the door at 1am, and not seeing anyone outside the peephole, opened the door. A respectably dressed black man was there; he asked for a glass of water, she turned to get it for him, and he got into her room and raped her. She sued the Adamses. Jury found in favor of Susan, but also found her 97% at fault; the Adamses were only 3% at fault.]

[O]ne way to make sense of comparative negligence is to assume that the required comparison is between the respective costs to the plaintiff and to the defendant of avoiding the injury. If each could have avoided it at the same cost, they are each 50 percent responsible for it. According to this method of comparing negligence, the jury found that Susan could have avoided the attack at a cost of less than one thirty-second the cost to the Adamses. Is this possible?

It is careless to open a motel or hotel in the middle of the night without trying to find out who is knocking. Still, people aren’t at their most alert when they are awakened in the middle of the night, and it wasn’t crazy for Susan to assume that Michael had returned without telling her, even though he had said he would be spending the night at the base. So it cannot be assumed the cost–not to her (although her testimony suggests that she is no so naive or provincial as her lawyer tried to convince the jury she was), but to the reasonable person who found himself or herself in her position, for that is the benchmark in determining plaintiff’s as well as defendant’s negligence–was zero, or even that it was slight. As inkeepers (in the increasingly quaint legal term), the Adamses had a duty to exercise a high degree of care to protect their guests from assaults on the motel premises. And the cost to the Adamses of warning all their female guests of the danger of the neighborhood would have been negligible. Surely a warning to Susan would not have cost the Adamses 32 times the cost to her of schooling herself to greater vigilance.

But this analysis is incomplete. It is unlikely that a warning would have averted the attack. Susan testified that she thought the man who had knocked on the door was her fiance. Thinking this, she would have opened the door no matter how dangerous she believed the neighborhood to be. The warning that was not given might have deterred her from walking alone in the neighborhood. But that was not the pertinent danger. Of course, if the Adamses had told her not to open her door in the middle of the night under any circumstances without carefully ascertaining who was trying to enter the room, this would have been a pertinent warning and might have had an effect. But it is absurd to think that hoteliers are required to give so obvious a warning, any more than they must warn guests not to stick their fingers in to electrical outlets. Everyone, or at least the average person, knows better than to open his or her door to a stranger in the middle of the night. The problem was not that Susan thought that she should open her bedroom door in the middle of the night to anyone who knocked, but that she wasn’t thinking clearly. A warning would not have availed against a temporary, sleep-induced lapse.

Wassel v. Adams, 865 F.2d 849, 854-855 (7th Cir. 1989).

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