Framing negligence

• Published date: 01 June 2022
• Author: Shoham Choshen‐Hillel,Ehud Guttel,Alon Harel
• Date: 01 June 2022
• DOI: http://doi.org/10.1111/jels.12315

ORIGINAL ARTICLE

Framing negligence

Shoham Choshen-Hillel

1

| Ehud Guttel

2

| Alon Harel

2

1

School of Business Administration, Hebrew University, Jerusalem, Israel

2

Faculty of Law, Hebrew University, Jerusalem, Israel

Correspondence

Ehud Guttel, Faculty of Law, Hebrew University, Mt. Scopus, Jerusalem 9190501, Israel.

Email: ehud.guttel@mail.huji.ac.il

Abstract

This article uncovers the role of framing in the determination of negligence. Negligence

disputes fall into two categories: cases in which injurers inflicted harm while seeking to

avoid a loss to themselves (loss frame) and those in which they were seeking to obtain a

personal gain (gain frame). We develop a theoretical framework whereby the frame of

the injurer’s behavior shapes negligence determinations in two ways. First, people are less

likely to find an injurer negligent in a loss than in a gain frame. This is because, due to

loss aversion, they find behavior more reasonable if done to avoid a loss than to obtain a

gain. Second, people accord greater weight to the efficiency of the injurer’s behavior in a

loss frame than in a gain frame. This is because a comparison between the victim’s harm

and the injurer’s benefit is more salient when both parties face a loss (loss frame). A series

of experiments supported both hypotheses as well as the underlying mechanism. We dis-

cuss the implications of our findings and suggest that they may relate to the seemingly

inconsistent case law on the role of efficiency considerations in negligence cases.

INTRODUCTION

Few concepts in tort law are as central and yet controversial as the Hand

formula. Proponents of the formula, which equates negligence with inefficiency,

emphasize its welfare-enhancing nature (Landes & Posner, 1987; Stein, 2017).

Opponents of the formula, typically invoking deontological considerations,

underscore its questionable moral foundation (Weinrib, 1995; Zipursky, 2007).

In large part, this debate is animated by how tort law operates in practice.

Looking at court decisions, proponents and opponents identify cases that

DOI: 10.1111/jels.12315

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs

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©2022 TheAuthors. Journal ofEmpirical Legal Studiespublished by Cornell Law S chool and Wiley Periodicals LLC.

296 J Empir Leg Stud. 2022;19:296–339.

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support their respective views. It is thus not surprising that some scholars have

concluded that tort law fails to adopt or to reject the formula—or more gener-

ally, to determine the place of efficiency—in a consistent manner (Gilles, 1994;

Schwartz, 1996–1997). But can a more thorough examination reveal a deeper

consistency at the root of what seems to be an unpredictable treatment of a basic

concept of negligence law?

This article identifies the significance of framing in negligence disputes and

its effect on jurors’reliance on efficiency considerations. It first shows that when

an injurer’s behavior was meant to prevent a loss (i.e., loss frame) rather than to

seek a gain (i.e., gain frame), people are more likely to perceive it as reasonable.

Second, it shows that the weight that people assign to efficiency considerations

hinges on framing. Particularly, people are more tuned to efficiency, that is, they

are more likely to compare the injurer’s situation to that of the victim and deter-

mine the reasonableness of the injurer’s action accordingly, when the injurer’s

behavior was intended to prevent a loss rather than to seek a gain. Therefore,

finding that the injurer’s behavior was efficient would have greater influence on

the outcome—that is, increasing the prospects of ruling for the injurer—in a loss

than in a gain frame.

Our predictions concerning the role of framing in negligence cases decisions

are based on the robust finding that framing shapes human judgment. A large

body of literature has shown that losses and gains of the same objective size often

result in different magnitudes of subjective experiences. These studies have

established that the reduction in welfare that people sustain when suffering a loss

is greater than the increase in welfare they enjoy when obtaining a corresponding

gain, a phenomenon dubbed “loss aversion”(Camerer, 2000; Kahneman &

Tversky, 1979;Levinetal.,1998; Tversky & Kahneman, 1981,1986,1991). Both

lab experiments and observations from the field have provided ample evidence

for the greater effect of losses than gains (Gächter et al., 2009;Grolleau

et al., 2016;Imasetal.,2017; Meyerowitz & Chaiken, 1987;Neale&

Bazerman, 1985; Schurr & Ritov, 2020).

1

Furthermore, whether a given change

in welfare is perceived as a loss or a gain depends on a prior reference point. The

“framing effect”relates to the finding that describing a given change either as a

loss or as a gain, compared to the reference point, leads to different reactions.

Framing has been demonstrated to affect people’s own choices, as well their judg-

ments of others’behavior (Gamliel & Peer, 2006; Kahneman et al., 1986).

Based on these findings, our first prediction is that framing plays an impor-

tant role in the determination of negligence. Whereas victims are (ipso facto) in

aloss frame, the framing of injurers’behavior depends on the contingencies of

the case. Taking the status quo as the point of reference, negligence cases fall

into two possible categories. The first involves injurers who engaged in risky

1

Although the framing effect is considered robust, some studies questioned its magnitude, at least in some settings

(for a review, see Zamir & Teichman, 2018).

FRAMING NEGLIGENCE 297

conduct to prevent or minimize a loss to themselves. The second involves

injurers who engaged in a risky conduct in order to seek a gain. Our prediction

is that jurors are more sympathetic to an injurer who harmed a victim while

attempting to avoid a loss (first category) than an injurer who engaged in the

same behavior to secure a gain (second category). In other words, jurors are

more inclined to find the injurer’s behavior reasonable in a loss frame than in a

gain frame.

Our second prediction is that framing also affects jurors’inclination to rely

on efficiency. Why would that be the case? We suggest that jurors are more

likely to compare changes in the parties’welfare (namely, rely on efficiency con-

siderations), when both the victim and the injurer faced a potential loss, than

when the victim faced a potential loss whereas the injurer faced a potential gain.

We conjecture that when both parties faced a loss (first category), a comparison

of their respective losses serves as a natural basis for resolving the dispute.

Jurors will readily compare the loss caused to the victim and the potential loss

that the injurer faced. Accordingly, when the injurer can establish that her

behavior was efficient, namely, that it enabled her to avoid an expected loss that

was greater than the loss caused to the victim, her behavior would be more

likely considered reasonable. Conversely, when the injurer’s action was driven

by an attempt to seek a gain (second category), jurors would be less likely to

compare this gain to the victim’s loss. Instead, they would be more likely to view

the gain-driven action that harmed another person as unreasonable. Even if the

injurer establishes that her behavior was welfare enhancing, jurors would be

more reluctant to rule in her favor. We label the conjecture that jurors tend to

accord greater weight to efficiency considerations in injurer loss cases, the

“framing-efficiency hypothesis.”That jurors are more likely to compare losses

to losses, than losses to gains, echoes findings obtained in the psychological liter-

ature. Studies have shown that “when judging their feelings about an outcome,

people naturally consider a context of similar outcomes for comparison

(e.g., they consider losses against other losses)”(McGraw et al., 2010; see also

Kahneman & Miller, 1986).

This article tests our two framing predictions through a series of experi-

ments involving negligence-related disputes. In these experiments, which

employed diverse pools of jury-eligible individuals, we elicited responses using

survey-based and incentive-compatible designs. Participants were given infor-

mation about injurers’interest in engaging in their behavior. Injurers were

described as either motivated by a desire to avoid suffering a loss or a desire to

secure a gain. In addition, the costs and benefits associated with injurers’

behavior were manipulated, rendering this behavior either socially efficient or

inefficient. Keeping all other contingencies identical, this design allowed us

to investigate the effect of framing (loss/gain) on participants’assignment

of liability as well as its effect on their inclination to rely on efficiency

considerations.

298 FRAMING NEGLIGENCE