LOOKING AND SEEING

Nicolas Cornell
University of Michigan Law School

I.

On November 6th, 1938, Charles T. Dashiell, Jr., was driving South through Maryland.1
Around five-thirty or six, Dashiell picked up two nineteen-year-old hitchhikers, J. Reginald
Moore and Reginald Porter. Moore and Porter had been dropped off by Moore’s older brother
and were now seeking to rejoin him several miles further on. The two boys got into Dashiell’s
one-seat coup, with Moore sitting in the middle and Porter sitting on the right. It was a clear
day, and the road was dry. Dashiell’s car lights were turned on and in good working condition.

A few miles along their journey, the car struck a large mule that had strayed into the road. As a
result of hitting the mule, the car was diverted into a collision with another automobile going the
opposite direction driven by Herbert Holland. In this accident, one of the hitchhikers, Moore,
sustained significant injuries and sued Dashiell for negligence.

Was Dashiell negligent? Consider the evidence that the court had to work with. It was
undisputed that, at the time of the accident, Dashiell was attempting to adjust the radio, located
in the center of the dashboard just below the windshield. But Dashiell testified that this did not
take his eyes off the road. The appeals court described his testimony as follows:

“Dashiell testified that he saw the two cars approaching, but that he did not see the mule… He
said that while he was changing the stations on the radio, he kept his eyes on the road ahead, and
was not looking at the dial at all, that it was off balance so that it was useless to read the numbers
on the dial, and that he was so familiar with its operation that he could find the tuning knob by
touch without glancing at it.”2

None of the other witnesses contradicted this. Neither of the boys had seen the mule in the road,
one explaining that his vision was obstructed and the other testifying that he was looking at the
radio dial. Mr. Holland, who was travelling in the opposite direction, did not see the mule either.

With this testimony before it, the trial court found that Dashiell had been negligent and the
appeals court affirmed that determination. Dashiell, these courts concluded, ought to have seen
the mule, which weighed around twelve or thirteen hundred pounds, in the road in front of him.

II.

Modern tort law is dominated by negligence. An outside observer would be forgiven for thinking
that tort law is simply the law of risk and negligence. Negligence probably constitutes the most
common tort claim and probably makes up the majority of a normal law school torts syllabus.

1 The following facts are all drawn from Dashiell v. Moore, 11 A.2d 640 (Md. 1940).
2 Id. at 643.

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Tort law, however, is not only concerned with negligence. Tort law is the law of private wrongs.
Philosophically minded scholars often express regret at the dominant place that negligence
maintains in tort law.3 Such scholars—keen on reclaiming tort scholarship from the economic
perspective that has been en vogue—have emphasized that tort law also includes intentional torts
such as battery and false imprisonment. The point of this reorientation is to draw attention to
the role that duties play in tort law. For such scholars, an essential element—in some sense, the
essential element—of any tort is the breach of a duty owed to the plaintiff by the defendant. In
battery, for example, a defendant is accused of breaching her duty not to touch the plaintiff
without consent. Negligence, the thought goes, similarly involves a defendant breaching her duty
to the plaintiff. We can understand all of tort law—and especially negligence—better if we keep
the breach of duty that is apparent in something like battery in focus at all times.

On this understanding, negligence is about what a defendant ought to have done. The question
becomes whether the defendant took “due care.” This inquiry asks whether a defendant failed to
perform actions that could have prevented the loss or accident and that would have been demanded
by a proper regard for the plaintiff or the class of persons to which the plaintiff belonged. In
short, was there an action that defendant owed to plaintiff that, if it had been performed, would
have averted the injuries?

There are, no doubt, many instances of negligence that neatly fit this characterization. A
company knows that a low-cost safety device would potentially save lives but elects not to pay for
it. A doctor could have detected a tumor if she had only ordered the medically appropriate scan.
A contractor builds a structure in violation of industry standards and it collapses on a bystander.
A driver goes at excessive speed, which prevents braking in time to avoid an accident.

Cases like these might be considered paradigmatic of negligence. The defendants failed to
perform actions that they were under duties to perform, where those duties were a manifestation
of proper care for the plaintiff. The company should have paid for the safety device; the doctor
should have ordered the scan; the contractor should have followed industry standards; and the
driver should have obeyed the speed limit. Negligence, on this picture, is continuous with the
intentional torts because they all involve holding a defendant responsible for the breach of a duty
to the plaintiff, either through action or through inaction. We can point to an intentional act that
the defendant should or should not have performed, and we hold the defendant responsible for
that.

III.

I am not sure that negligence always fits this picture. In fact, I am not sure that negligence even
generally fits this picture. Negligence is often about inattention or inadequate attention, and it’s
not clear this can be analyzed in terms of some particular action or actions that might count as
breach of some duty.

Consider the case with which I started. Dashiell collided with the stray mule in the roadway. He
said that he didn’t see it, and there’s no reason to doubt this claim. Why didn’t he make any

3 See, e.g., Benjamin C. Zipursky & John C.P. Goldberg, Torts as Wrongs, 88 TEX. L. REV. 917 (2005).

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effort to avoid colliding with it? (And, if he saw the mule and collided with it anyway, then this
would start to look like something more than negligence!)

Still, the court concluded—very plausibly—that Dashiell was negligent. In its opinion, the
Maryland Court of Appeals explained the legal standard as follows: “[I]f the evidence permits a
rational inference that by the exercise of ordinary care he could have seen it in time to have
avoided the collision, the conclusion is inevitable that he is subject to liability for the harm caused
by his inattention.”4 In other words, in determining that Dashiell was negligent in hitting the
mule, the court determined that “by the exercise of ordinary care he could have seen it.”

This construction is ambiguous between two meanings—one implying an action and another
implying a disposition or capacity. To see the ambiguity, consider this question: Why didn’t
Dashiell see the mule? One possibility is that there was some intentional action that Dashiell
performed or failed to perform. It’s easy to see how this explanation might go. Perhaps Dashiell
chose to look at his radio rather than at the road in front of him. If he was looking down at the
radio, then he was failing to keep his eyes on the road. And, in so failing, he was breaching his
duty of care. Perhaps that’s what happened.

But Dashiell testified that he was looking ahead and not at his radio. No one contradicted this.
And, from the record, I don’t see why this should not have been the case. Dashiell may very well
have always kept his eyes looking forward. Let’s assume that he did. This is the set of
circumstances in which I am interested and on which I will focus. (Even if Dashiell did glance
down quickly, it’s not clear that a split-second glance should necessarily count as a breach of
one’s duty of care.)

So, suppose that Dashiell did not look away (or only looked away very briefly). Despite looking at
the road, he failed to see a thirteen-hundred-pound mule directly in front of him. How might
this happen? It might happen because he was distracted; or, he wasn’t paying sufficient
attention. Even though the mule was in his visual field, he wasn’t processing his surroundings
adequately to appreciate that it was there. He was looking at it, but didn’t see it. For all of us—
all of the time—there is a significant gap between what we are looking at and what we actually
see. It seems plausible that, for Dashiell, the mule was in that gap.

The court appreciates this gap but then—remarkably—appears almost to stipulate it away. It
says, “one will not be permitted to say that he looked and failed to see what he must have seen
had he looked.”5 Then, quoting an earlier decision, it further explains, “the driver of an
automobile… is conclusively presumed to have seen such surrounding circumstances as he would
have seen had he properly exercised his faculty of vision. The duty to look implies the duty to see what is
in plain sight unless some reasonable explanation is shown. Where there is nothing to obstruct the
vision of a driver, it is negligence not to see what is clearly visible.”6 The court’s approach, it

4 Dashiell, supra note 1, at 644.

5 Id. at 644.
6 Id. at 645 (emphasis added). It has been suggested to me that perhaps the way to understand the court’s reasoning

is as an application of res ipsa loquitur. If that inference were meant as an empirical claim—that people generally
don’t fail to see unless they are not looking—then I think there is substantial cognitive science against it. If it is a
kind of burden shifting based on normative considerations, then it would accord directly with the account that I offer
in part IX below.

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seems, is simply to treat a failure to see as a failure to look. It acknowledges the gap between the
two only to turn around and say that the gap will not be legally recognized.

But surely a great deal of negligence exists precisely in this gap. Through inattention we fail to
see things that we should see and we thus fail to act accordingly. This negligence is, I want to
suggest, not about a failure to do something—say, a failure to maintain one’s speed or a failure to
look at the road. Rather, it is about a failure to perceive.7 Dashiell should have seen the mule.
Saying that he should have been keeping lookout doesn’t capture that. It’s not just that he should
have looked. He should have seen it. It was an enormous animal right in front of him on the road in
good conditions.

We have, then, two ways to understand the basis for liability in negligence: a failure to look or a
failure to see.8 I believe that a great deal of negligence—perhaps all of it—involves the second of
these, namely a failure to see. Negligence, as a concept, is about inattention, not breach of duty.
This inattention can sometimes be attributed to improper choices and may sometimes even be
advertent.9 But not always. Whether due to a failure to look or not, we may be accountable for
our failures to see.10 Such accountability can seem problematic if one focuses on agential choice,
control, and duties. In the course of what follows, I hope to make it appear less perplexing by
moving the focal point from the agent to the ex post interpersonal exchange, from our reasoning
process to our being called upon to give reasons.

IV.

If negligence liability is—as I have been characterizing it—about a failure to see, then this can
seem to generate a problem. The problem arises from an apparent connection between
responsibility and voluntary action. We typically think that one can only be held responsible for
acts or omissions that are, in some sense, under our control. This requirement is sometimes
taken to be a corollary of the idea that “ought” implies “can.”

This general kind of problem leads some people—whom I will call negligence skeptics—to think that
negligence is not sufficient grounds for holding someone liable. To hold people liable for
negligence, the thought goes, is to hold them liable for something that was not a conscious act or
omission. Here, for example, is how Matt King describes the skeptical challenge:
“[N]egligence is unique in that it does not require consciously entertaining the risk one’s conduct
poses. It only has to be the case that one’s conduct is unreasonably risky, not that one acted in

7 I find it a bit perplexing that so much philosophical discussion of responsibility is devoted to moral ignorance but
far less to factual ignorance. The person who just doesn’t see something seems vastly more common than the person
who doesn’t see that her wrong act is wrong.
8 The wrong of negligence may require harm as well. Certainly the tort action does. But, morally, we have a concept

of negligence even in the absence of harm. Texting while driving constitutes negligence, in this sense, whether or not
there’s an accident. Put more doctrinally, my focus is simply on the duty of care element in tort.
9 Shiffrin argues that negligence need not involve inadvertence. That seems plausible. See Seana Shiffrin, The Moral

Neglect of Negligence, in OXFORD STUDIES IN POLITICAL PHILOSOPHY (2018).

10 My position bears significant affinity and similarity with both Honoré’s “outcome responsibility” and Gardner’s

“duties to succeed,” the latter of which I discuss at length in section X below. I share a great deal of sympathy with
both. But I understand my claim as distinct, insofar as I am focused on the perceptual and not so much on action at
all.

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 the recognition that it was so…. The problem with negligence begins with the simple observation
that while negligence is characterized by the lack of a conscious mental element, paradigmatic
cases of responsibility seem to require at least some conscious mental element tying the agent to
the outcome in question.”11

The challenge is that negligence appears, at least much of the time, to involve no conscious
awareness that one’s conduct might be harmful or risky. And this lack of conscious mental
awareness poses a challenge for responsibility.

One way to put the challenge is in terms of choice. Conscious awareness can appear necessary if
we are to say that an actor has chosen to do something. And intentional choice, one might think,
is a precondition for accountability. Thus, consider the way in which Michael Moore and Heidi
Hurd describe the skeptical worry:
“The standard worry about inadvertent negligence is that actors never choose to cause the harms
for which they are held liable. And choice, the objection continues, is the touchstone of both
culpability and deterrability. Culpability is generally conceived of as wrongdoing in the mind of
the actor. That is, if an act would be wrong to do, then seeing oneself—through one’s mind’s
eye—as doing such an act is what makes one culpable. And that mental representation of the
action in its wrongful characterization is just what is missing from the mind of the inadvertent
actor.”12

In this way, the lack of a conscious mental representation is important because it means that we
cannot say that the agent has made a wrong choice.

There is an intuitive thought behind this skeptical challenge. Responsibility, one might think,
arises from the breach of one’s duties. But duties are meant to be normative. As such, they
should be able to serve as guides or instructions. To say that one is under a duty is to say that
there are reasons of a certain sort that apply to the choice that an agent faces. The skeptical
challenge is that negligence seems to concern functions—like seeing or not seeing—that are not a
matter of reasons and not a matter of choice.

This skeptical challenge takes on a particular force in relation to legal doctrine, precisely because
it appears to rely explicitly on conduct-shaping norms. Tort liability is, as I have noted, generally
taken to be premised on a breach of a duty. In order to say that a defendant was negligent, a
plaintiff must show that the defendant failed to conform her conduct to the standard of due care.
In this way, liability is taken to be a reflection of a norm of conduct. Negligence liability arises, it
seems, only because the defendant should have shaped or guided her actions in some way and
she has failed to do so. It is for this reason that lawsuits so often focus on precautions not taken
or evidence deliberately ignored: We want to find an choice in to locate the failure.

But if negligence can be about a failure to see—not just about a failure to look—then this
presents a tension with the focus on duties. We can see the problem in the example case that I
have chosen. What exactly was the duty that Dashiell breached? What was the standard of due
care to which Dashiell failed to conform? One can say that he had a duty to look. But, as I have

11Matt King, The Problem with Negligence, 35 SOCIAL THEORY & PRACTICE 577, 578-579 (2009).
12Michael S. Moore & Heidi M. Hurd, Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of
Negligence, 5 CRIM. L. & PHIL. 147, 150 (2011).

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emphasized, he may have fulfilled that duty. For liability, we need something further; we would
need a duty to see. And, according to the skeptic, we have reason to doubt such duties.

It is fascinating that the court itself seems both aware of the distinction and yet unconcerned. It
appreciates that simply appealing to a duty to look will not be enough, but then it says that the
duty to look “implies” the duty to see. It is as though the court is both committed to locating
some action that might reasonably have been demanded of Dashiell—namely to keep lookout—
and then promptly jumps to something that. This leap only highlights the skeptical worry: Sure
we can demand that people do things that are within their control—like looking—but how can
we demand something—like seeing—that may be beyond their voluntary control?

V.

One response, at this point, is to insist that negligence can always be traced to some prior
conscious act or omission, which has produced the lack of present awareness—what Holly Smith
labels a “benighting act.”13 Where the lack of awareness can be traced to such a benighting act,
then, although the negligent actor might not be conscious of what she is doing in that moment,
she is still responsible for the failure. Negligence liability, then, involves no transgression of
ought-implies-can, because the agent could have done otherwise, even if the failure occurred
earlier.

Here, for example, is Seana Shiffrin:

“Negligence may seem de minimis when one considers it in snapshot terms. In one instant, one
failed to look or to remember and something unfortunate ensued. Where negligence is culpable,
a longer look would often show a failure to engage in a pattern of non-negligent activities, over
time, which would build habits, fixes, and stopgaps to protect against occasional lapses and to
prevent them from manifesting in failures of deliberation or agency. To engage in non-negligent
activity and to erect this infrastructure is a decision, as is the decision not to bother and to rely
on one’s present resources in the moment whenever it strikes. A slower shutter speed, so to speak,
seems more appropriate if we gauge moral wrongs by reference to the agent’s character and
motives as they are expressed in action. We could, instead of adopting the snapshot perspective,
understand the significance of culpable negligence in terms of these prior decisions not to practice
non-negligence and the ongoing indulgence in rationalizations that render this inactivity a live
option. Keeping the lens open longer, it’s hard to see these decisions as mere omissions or their
products as mere accidents. They are, instead, the unsurprising products of ongoing patterns and
continually made and reaffirmed decisions.”14

The basic idea here is that there are ongoing duties to shape one’s awareness and that negligence,
even if not consciously chosen at the moment, involves failing to abide by one’s duties over the
long haul. This move follows a more general idea about how we can be responsible for
ignorance. Here for example is how Gideon Rosen puts it:

“As you move through the world you are required to take certain steps to inform yourself about
matters that might bear on the permissibility of your conduct. You are obliged to keep your eyes
on the road while driving, to seek advice before launching a war and to think seriously about the

13 Holly Smith, Culpable Ignorance, 92 PHIL. REV. 543, 547 (1983).

14 Shiffrin, supra note 8, at 29.

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 advice you’re given; to see to it that dangerous substances are clearly labeled, and so on. These
obligations are your procedural epistemic obligations…. The procedural obligation is not itself
an obligation to know or believe this or that. It is an obligation to take steps to ensure that when
the time comes to act, one will know what one ought to know.”15

For both Shiffrin and Rosen, agents have ongoing obligations to cultivate the correct orientation
toward the world so that, when the moment comes, one does see the important thing. We can
think of these obligations in terms of erecting an “infrastructure,” as Shiffrin does, or in
“procedural” terms, as Rosen does. Either way, the point is that the agent whom we hold
accountable for negligence has failed to do things in her control somewhere leading up to the
negligence. This is, we might say, an expansion of the duty to look. It’s not merely that one has,
in the instant, a duty to look but one has a duty to train and prepare oneself to look successfully.

There is something important here, but we must be careful about how strongly we understand
the insight. Shiffrin and Rosen are correct in saying that certain prior efforts could avert
instances of negligence. So, typically, we can truthfully assert that the agent could have done
otherwise, as long as we adopt something more than the snapshot perspective. Negligence liability
does not hold people responsible for actions which they could simply have done nothing to avoid.

It is a stronger claim, however, to say that negligence can be traced back to some
straightforwardly culpable act or omission. We can agree that there will always have been
something that an actor could have done without agreeing that there will always have been
something that an actor ought to have done. Dashiell’s accident, for example, was surely not
unavoidable. In the extreme, Dashiell could have trained himself over the years to be absolutely
vigilant—even paranoid—about spotting even the slightest threat in the road ahead by
constantly reminding myself of the dangers involved in driving. He might have accustomed
himself to see the most remote and unanticipated threat. He might have had two more shots of
espresso. Assuming that there was something that he could have done that would have avoided the
accident, it is a separate question whether his failure to do so was wrongful. To say that
negligence can always be traced to a culpable failure is much stronger than saying that a
negligent actor could have done otherwise.

The negligence tracer is able to answer, at least partly, the negligence skeptic. The skeptical
challenge, recall, is that negligence appears to involve liability for things beyond the control of
the agent—not merely a duty a duty to look, but also a duty to see. Such liability seems morally
problematic because duties should be things that we can actually follow. The negligence tracer
answers this challenge by pointing out that, were it not for earlier choices, negligent actors could
have done otherwise. But, when we say this, are we implicitly saying that these earlier failures
constitute the breach of duty at issue? For example, was Dashiell’s breach of duty the failure to
take steps that would have ensured that he see the mule (i.e. whatever he might have done
consciously), or was Dashiell’s failure not seeing mule (i.e. something that was not conscious)?
Was Dashiell’s wrong a failure to cultivate his seeing, or a failure to see?

If the tracer appeals to the earlier acts as the relevant breach, then there is a worry that they have
answered the skeptic only by changing the content of the alleged duty. They have then pointed

15 Gideon Rosen, Skepticism about Moral Responsibility, 38 NOÛS 295, 301 (2004).

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to a duty that one could indeed consciously follow, but they have done so at the cost of the
intuitive idea that the wrong happens at the moment of inattention—that, for example, Dashiell’s
accountability is for not seeing the mule. One might worry that, understood this way, the tracer’s
response goes too far.

VI.

But perhaps we can take the tracer’s insight without having it describe the content of one’s duty.
Perhaps the availability of earlier avenues to avoid negligence merely shows us why is it
permissible to hold the actor responsible for the negligence conduct now. The breach really does
consist in failing to see the mule and injuring the passenger, Moore. It’s true that it wasn’t
knowing or intentional, but, given that there were earlier steps that could have avoided it, the fact
that Dashiell didn’t see the mule does reflect something about him.16 We can hold him
accountable because the act reflected his agency. It reveals something about the quality of his
will even if it wasn’t the direct product of his will. I shall refer to defenders of this kind of view—
which often goes under the slogan “quality of will”—as negligence reflectors.

Such a view might start from the thought that our concern is revealed in what we noticed about
the world. As Nomy Arpaly puts it:
“A person who cares about birds will notice a bird on the roof, while in the same situation a
person who does not care about birds may not notice it at all… [O]ther things being equal, a
person of more moral concern will be more sensitive to moral features of situations—more apt
to notice, for example, that a fellow human being is showing signs of distress or that a joke has
the potential to offend certain people.”17

If noticing features of the world reveals a kind of concern, then surely not noticing features of the
world can reveal a lack of concern—an underlying judgement that some matter is not of as high
importance as others. And thus we might appropriately call upon someone to answer for an
inadvertent omission because it potentially reflects something about the person’s concern for us.
As Angela Smith puts it:
“[W]hat really matters in determining whether an agent has ‘omitted’ to do something is whether
her behavior deviates from, or violates, a contextually based practical norm in a way that can
reasonably be taken to reflect something about that agent’s underlying evaluative judgments. It
is this tie to an agent’s underlying evaluative judgments that establishes the relevant connection
to her ‘agency,’ and that makes requests for justification (in principle) appropriate.”18

Not only does our conduct—inadvertent omissions as well as conscious choices—seem to reflect
our underlying values and concern, but moreover, each of us is typically committed to seeing our
conduct as our own. Here is Joseph Raz:
“[O]ur sense of who we are is shaped in part by our competence in using our capacities of
rational agency…. The way we feel about ourselves, our self-esteem, our self-respect, the degree

16 At the extreme, one might say that negligence reflects something faulty in a person’s character. But speaking of
character seems to be both unnecessarily global and unnecessarily essentializing. It seems to be enough simply to say
that the negligence reflects something about that person’s concerns or values in that moment.
17 NOMY ARPALY, UNPRINCIPLED VIRTUE: AN INQUIRY INTO MORAL AGENCY 87 (2003).
18 Angela M. Smith, Unconscious Omissions, Reasonable Expectations, and Responsibility, in THE ETHICS AND LAW OF

OMISSIONS 36, 52 (2017).

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 to which we are content to be what we are, or what we perceive ourselves to be, our pride in
ourselves, our shame in how we are, or in how we conduct ourselves—all these and various other
self-directed attitudes and emotions depend in part on competence in using our faculties of
rational agency. Actions due to malfunction of our capacities of rational agency result from
failure to perform acts of which we are masters. In acknowledging our responsibility for these
unintentional acts and omissions we affirm our mastery of these abilities, deny that we are
disabled in the relevant regards.”19

Among these capacities of agency will be perceptual capacities. When I see a meadowlark in the
field before me, I consider it to be something that I have done. Acknowledging a failure to see,
then, is actually an affirmation of one’s sight as part of who one is.

It’s easy to see how a negligence reflector might handle Dashiell. Dashiell’s failure to see the
mule and avert the accident was attributable to a failure of his agency. It is a reflection of him,
and it was a failure.20 His conduct in that moment displayed insufficient concern for the safety of
his passengers—properly oriented drivers don’t fail to see large slow-moving animals in the road.

For some failures to see, the negligence reflector’s account fits quite well. Failing to notice
something, especially something about the way one’s actions might bear on another, can be very
revealing about who that person is. But is it always? Some instances of negligence may be
isolated and reflect very little about the agent’s character or values—what Moore and Hurd call
“free-standing” cases.21 Especially with routine tasks performed innumerable times in one’s life
or even within a single day, even the most careful may occasionally falter on one occasion or
another. That particular failure doesn’t reflect who the person is.

More significantly, our accountability for negligence turns significantly on what happens to result
from one’s lapse. This is obviously true with liability in the law, and I think that it’s also true in
morality. We are subject to a much more significant complaint when our carelessness has caused
serious injury than when it has proven harmless. Jeremy Waldron vividly illustrates the contrast
with a tale of two equally distracted drivers, Fortune and Fate.22 Fortune does no damage as the
road happens to be clear, but Fate causes a serious accident; Fate faces massive legal liability.
Waldron uses the contrast to raise questions about tort law’s fairness. This challenge has
particular bite for the negligence reflector. If accountability in negligence is supposed to be based
in what the failure reflects about the agent, then it seems hard to justify differential treatment. As
Waldron puts it, “Since Fate and Fortune seem equally deserving (so far as their driving is
concerned), surely it is unjust to treat them differently.”23

And yet we do treat them differently. Results matter.24 Perhaps they matter too much; perhaps
it is unduly harsh to subject people to millions of dollars in liability for a single momentary lapse.

19 Joseph Raz, Responsibility and the Negligence Standard, 30 OXFORD J. OF LEGAL STUD. 1, 17 (2010).
20 As Raz puts it, “If [someone] is a competent driver who caused [an] accident through momentary inattention[,]
he is responsible because one is responsible for actions within one’s domain of competence even when, due to the
malfunctioning of one’s powers of agency, they accidentally go wrong.” Id. at 17.
21 Moore & Hurd, supra note 11, at 182.
22 Jeremy Waldron, Moments of Carelessness and Massive Loss, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW (1995).
23 Id. at 389.
24 See TONY HONORÉ, RESPONSIBILITY AND FAULT 29 (1999) (“If actions and outcomes were not ascribed to us on

the basis of our bodily movements and their mental accompaniments, we would have no continuing history or

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But it’s hard to deny that, even in morality, we hold people answerable for particular events and
repercussions—not merely for the quality of their will or agency. The negligence reflector seems
ill-positioned to vindicate these practices. We hold Dashiell accountable for not seeing the mule.
He is like Fate. There may be a Fortune who behaves no differently than Dashiell—who keeps
the same lookout and has the same concern—but who luckily see the mule and breaks. It’s hard
to say that the difference reflects anything about Dashiell.

VII.

One might think that the features emphasized by the tracer and the reflector—that the negligent
actor could have done otherwise and that the action reflects the actor—are not the basis for
accountability but rather preconditions. While we shouldn’t hold people liable for things that are
truly beyond their control, that doesn’t mean that, when we do hold people liable, we are doing
so on the basis of their failure of control. While we shouldn’t hold people accountable for things
that reflect nothing about them, that doesn’t mean that, when we do hold people liable, our
doing so is a matter of what we think about them. The points about control and reflecting the
agent describe not the duty, but rather a condition on accountability.

Here, for example, is how Arthur Ripstein puts a version of this point:
“The emphasis on foresight might be thought to explain the basis of duty: you owe a duty to
your neighbor because you can foresee his or her vulnerability. I want to suggest, however, that
foreseeability has no such positive role to play. Instead, it enters as purely formal constraint: The
law cannot require you to take account of something of which no account can be taken.”25

The idea is that, while we cannot hold people responsible for things that they could not have
foreseen, the duty itself is not about foresight. Our having been able to take steps to see is a
condition on holding responsible, but the taking steps does not describe the content of the duty.26

What, then, is the content of the duty? The thought is that the duty describes certain external
conduct in relation to other people. In Ripstein’s words, “The norm in negligence tells you to
avoid injuring others through your carelessness.”27 It is what Goldberg and Zipursky call “a duty
of noninjury” and not merely “a duty of noninjuriousness.”28 The duty is, ultimately, about one’s
external conduct: Did your body or property carelessly interfere with my body or property?
Fortune and Fate may have been similarly careless, but only Fate has breached the duty of
noninjury.29 I’ll refer to those with views like this as negligence externalists.30 The appeal of this

character. There would indeed be bodies and, associated with them, minds… But having decided nothing and done
nothing these entities would hardly be people.”)
25 ARTHUR RIPSTEIN, PRIVATE WRONGS 89 (2016).
26 Herstein emphasizes the capacity of the agent as the precondition: “possessing the capacity to intentionally or

knowingly comply with the duty of care is a condition for being subject to the duty of care.” Ori J. Herstein,
Responsibility in Negligence: Why the Duty of Care is not a Duty “To Try,” 23 CANADIAN J. OF LAW & JURIS. 403, 429 (2010).
27 RIPSTEIN, supra note 23, at 117.
28 JOHN C.P. GOLDBERG & BENJAMIN C. ZIPURSKY, RECOGNIZING WRONGS 186 (2020).
29 Id. For what it is worth, Waldron is quite aware that “[a]ctions can be described in all sorts of ways.” Waldron,

supra note 21, at 398.

30 This position should not be confused the more familiar legal issue about objective versus subjective standards. In

fact, the distinctions are orthogonal with one another. We can ask either whether the external conduct lines up with

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view, as should be clear, is that it takes negligence out of the internal realm and makes it a matter
of the external relation among agents.31

Negligence externalists believe that the duty that is breached in negligence is a duty not to
interfere with the rights of others—in particular, their right to integrity of body and property.
So, what duty did Dashiell breach? He breached his duty not to injure Moore carelessly. The
law dictates that his conduct not impair Moore’s rights. He failed, not because he internally
failed to abide by a directive that he might have followed, but rather because his external
conduct did not live up to what we demand. Putting the point in terms of the dichotomy that I
have been emphasizing, his failure was not that he didn’t look where he was going, but that he
didn’t see the mule and avoid it.

Although the externalist’s duty is one of noninjury, it also includes within it an element of taking
care. One only breaches the duty when one is careless, not anytime one causes injury. Does this
just reintroduce the puzzle? After all, we can still ask: Was Dashiell careless in not seeing the
mule—or was he only careless if he didn’t look?

The thoroughgoing externalist will interpret even carelessness as a matter of external conduct.
What we must answer for, the thought goes, is whether our conduct conforms with the accepted
norms of care. That’s not about our mental states. Here, for example, is Benjamin Zipursky:
“In thinking about whether the defendant used ordinary care, the jury… will be deciding
whether the act of defendant that injured her… was a careless act. And they will do it by asking
themselves to compare the defendant’s conduct to the reasonably prudent or careful person
under the circumstances…. [A] great deal of negligence does not involve taking unreasonable
risks. It simply involves acting in a manner that is careless. The negligence in these cases is in the
execution of the course of conduct or the act, not in the taking of a risk.”32

Or, putting it only slightly differently, here is Ori Herstein:

The duty of care in negligence is… a duty for certain conduct—namely for reasonable conduct—
that does not incorporate an additional duty to have any specific type of mental state in so
acting… [T]he duty of care is not a duty to try to avert harm but a duty to succeed in generating
reasonable conduct.33

The basic thought is that the duties in negligence are a matter of our external relations with
others, not what happens in our head. With respect to carelessness, the duty not to act in careless
ways—not to engage in the mental act of caring.

This thought is easiest to apply where care describes discrete precautionary conduct. There
person who drives while texting is acting in a manner that is careless. The thought is significantly
harder to apply in a case like Dashiell’s, where the failure of care consist simply in not seeing.
(And, again, my conjecture is that much negligence is simply not seeing.) In a way, though, the
externalist’s understanding fits reasonably well with the court’s approach: Dashiell’s duty to be

what we can expect from this particular person or from an objective reasonable person, or whether the conscious
choices line up with what we can expect from this particular person or from an objective reasonable person.
31 In the Kantian mapping, it falls within the doctrine of right, not within the doctrine of virtue.
32 Benjamin C. Zipursky, Sleight of Hand, 48 WM. & MARY L. REV. 1999, 2017-18 (2007).
33 Herstein, supra note 24, at 442.

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careful implied a duty to see; seeing large objects is, after all, what a reasonably careful person
does. “It is negligence not to see what is clearly visible.”

The difficulty, as one can readily anticipate, is that the externalist now risks running back into the
skeptical challenge. If liability is for a failure to see, then it seems like we’re demanding
something that is not a matter of someone’s choice. Dashiell’s failure to see was defective, but it
wasn’t something that he chose.

VIII.

Ironically, for this volume on “New Conversations,” I have—it should now be abundantly
clear—stepped into a conversation that is not new at all, but extremely old and well-rehearsed.
Variations crop up in the literatures on responsibility and blame, on moral luck, on tort doctrine,
and elsewhere. And it has familiar conversational positions, each offering appealing aspects and
yet also facing serious challenges. I have barely scratched the surface in this little survey, which
oversimplifies, melds, and perhaps even caricatures. But my hope is that this rough mapping can
point the way toward some new avenues forward.

So allow me to take stock. Negligence skeptics question the appropriateness of holding people
liable for negligence per se. They object to the kind of duty that negligence purports to describe.
It seems to subject people to accountability for matters beyond their control—like whether they
see and not merely whether they look. The negligence skeptics, to my mind, have an important
insight. They are right to think that duties are somehow connected to choice and deliberation.
Duties must be about norms to which one can, in some sense, conform our conduct. If
negligence consists in a breach of a duty, then there must be some way that the duty can figure in
our deliberation. But negligence skepticism strikes me as plainly unappealing on its face. It
conflicts deeply with our moral (and legal) practices. It seems to me that many of the gravest
wrongs that we commit are wrongs of negligence—are wrongs of not seeing the world as it is.34
So, even if the challenge reflects something important, I take it as almost a fixed point that
negligence skepticism is incorrect.

Negligence tracers are thus correct to search for a way to vindicate negligence liability. But they
also share the skeptic’s appreciation that duties are about norms that one can follow. This
appreciation leads them to seek out antecedent choices that led to the negligence. In this
enterprise, the negligence tracer gains an important insight: Negligent actors generally could
have done otherwise. Negligence liability does not involve imposing liability on someone simply
incapable of doing anything else.

But accountability for negligence doesn’t seem actually to be accountability for earlier choices
and preparation. Whatever the merit of the tracing as a vindicatory strategy, it should not be
thought to give us the content of negligence. It seems to be accountability for the failure now—
for not seeing. Negligence reflectors and negligence externalists each explain this

34 As Shiffrin puts it, “Negligence is not just a paler or more dilute version of malicious action, a minor variation on a

major theme. It should be recognized as a distinct, serious wrong…. Negligence… involves a failure to take and
exercise appropriate responsibility for one’s agency; and, when that failure involves other people, negligence involves
a failure properly to recognize and acknowledge their moral significance.” Shiffrin, supra note 8, at 24-25.

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accountability—accountability for not seeing–in different ways. For the reflector, the present
failure reflects something about the agent, which explains why the agent should answer for it.
The trouble is that it’s not clear that particular instances of negligence, especially the particular
consequences that result, actually do reflect much about the particular unfortunate agent. For the
externalist, negligence consists simply in injury caused by careless conduct. But this runs back
into the skeptical challenge—if it’s not merely a duty to look but a duty to see, how are we
supposed to conform our conduct to that?

I want to suggest that the skeptics are basically right about how to understand our concept of
duty, the tracers are right about how to vindicate negligence against the skeptical worry, the
reflectors are right that we are more than just our deliberating selves, and that the externalists are
right to think that answerability starts from our external conduct.

I think that we can get all of this if we dispense with the thought that negligence is founded upon
a breach of duty, at least where “duty” describes something about reasons and deliberation.
Negligence is, I think, accountability for not seeing. And that’s something that isn’t a breach of a
duty—but that is a failure that causes an injury.

If we want the term “duty” to describe something action-guiding, then we must say that it is a
duty to look. This may be a broad duty to keep lookout, which may include procedural steps and
preparatory training. But, regardless, the duty will constitute something that the agent might
conceivably follow. A so-called “duty to see” will not have this character.

I think that the puzzle around negligence arises in assuming that accountability must map onto
the agent’s deliberative standpoint—in assuming that what we can be called upon to give reasons
for maps onto what we do for reasons. From the deliberative standpoint, I should look and I
should take steps to ensure that I do so diligently. That’s what I have reasons to do. But I am
accountable for seeing. When I don’t see, I can be called upon to justify myself.

In the next two sections, I roughly sketch two ways of seeing this divergence between the
standpoint of deliberation and the standpoint of accountability.35 The first focuses on
accountability as an interpersonal relation—a kind of interpersonal dialogue. The second focuses
on perception as form of morally significant activity. Each pulls accountability away from the
deliberation of the agent—the first by shifting outward to the dialogue between persons, the
second by shifting from deliberate choice to nondeliberative perception. My hope is that these
shifts make the idea of accountability not founded upon breach of a duty seem less puzzling. If
so, then we can make sense of accountability for not seeing without positing a (problematic) duty
to see.

IX.

My view, as I’ve suggested, is that it is a mistake to assume that accountability must map onto the
agent’s deliberative standpoint—what the agent could consciously choose. The mistake arises, I
think, from assuming that the things for which we can be called upon to give reasons map onto

35 Elsewhere, I argue that we should see the answerability and duties as coming apart for other reasons. See, e.g.,

Nicolas Cornell, Wrongs, Rights, and Third Parties, 43 PHIL. & PUB. AFF. 109 (2015).

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the things for which we have reasons. Sometimes we are called upon to offer reasons for things
that are not a matter of our reasoning.

I’d like to try to illustrate this idea is in terms of what lawyers refer to as the “burden of
production,” not to be confused with the more familiar notion of a burden of persuasion typically
referred to simply as a burden of proof.36 A burden of proof, in this more common sense,
describes an epistemic threshold that must be overcome. To meet one’s burden of proof, one
must provide sufficient evidence to raise the level of credence beyond a specified point. A burden
of production, in contrast, is about allocating which party is responsible for raising allegations
and introducing prima facie evidence for them. For example, in a suit for trespass, the plaintiff
must allege and provide some evidence that the defendant has entered upon the plaintiff’s
property. This is not really an epistemic idea, but a procedural one. If you want to succeed in
such-and-such case against another, then you must make such-and-such allegation or provide
such-and-such evidence. It addresses who, procedurally, is required to bring forth what
allegations and evidence, and in what order, if liability is to be established or defeated.

I want to borrow, roughly, this procedural legal idea and try to apply it in the moral realm. We
might think of any question about the moral responsibility of one person to another as involving
a party with a complaint and a party against whom the complaint may be leveled—
metaphorically speaking, a moral plaintiff and defendant. One party has a case that she has been
wronged by the other party. In order to resolve whether such a wrong has actually occurred, we
can imagine a moral conversation—or litigation—between these two parties.

In the case of negligence, it seems to me that the moral plaintiff, so to speak, is only required to
allege injury at the hands of the moral defendant. Someone says, “you hurt me,” or “you
stepped on my foot,” or “you caused the crash that produced my injuries.” This is a statement
about external conduct and its relation to the complaining party. Importantly, it does not say
anything about the conscious choices or antecedent acts and omissions of the other person. I
want to suggest that statements like this are sufficient to satisfy what I am describing as the moral
burden of production. These facts are enough to make out a prima facie case for moral liability.
It shifts the burden to the injuring party to justify her action.

Of course, this still does not settle the question. The injuring party may offer justification for her
conduct or may otherwise seek to disprove accountability. But—and this is what I want to insist
on—the injured party has, at this point, met her moral burden of production. The initial
predicate of moral liability has been articulated. The only question is whether it can be defeated
by the other party. If it cannot, then moral liability attaches. Or, putting it in a perhaps better
way, moral liability is constituted by the lack of justification in the face of a prima facie case

36 See Fleming James, Jr., Burdens of Proof, 47 VA. L. REV. 51, 57-58 (1961) (“The concept of the production burden is
addressed to the court’s function, not the jury’s. It is simply a device whereby the court determines whether, if the
trial were stopped at any given point, it would send the case to the jury…. The concept has primarily a procedural
consequence when evidence is available to both parties on the issue in question; it simply determines the order in
which they shall put it in.”).

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calling for it. This way of putting it makes clear that moral responsibility has, built into it, a
procedural element.37

Consider an imagined conversation between the parties in my initial case. (Just to reiterate, it is
not important that such a conversation actually take place. The moral responsibility is a function
of what the conversation would look like if it were to take place.) Moore suffers injuries from the
crash. He says to Dashiell:
“You injured me by failing to stop for the mule in the middle of the road.”
This claim, I submit, satisfies the initial burden. It puts Dashiell in a position where he owes a
reply if he wants to escape responsibility. (Notice that there is no assertion of a breach of duty
here. In pointing out that the other person’s conduct has affected one in a particular way, one
already makes out a prima facie case to be given an answer. It is not one’s job, at this juncture,
to point to a particular, action-guiding norm that was flouted.)

We can imagine a range of replies that Dashiell might offer. I want to focus on three. First:
Reply #1: “I didn’t see the mule.”
This is, in effect, the reply that I have attributed to Dashiell in the actual case. It seems to me
that this reply is impotent. It can be met with something like, “Yeah, that’s the problem!” In
other words, it is no reply at all. This point can be obscured by a different way of framing things.
We might imagine Moore saying back something like, “Well, you should have seen the mule.” If
we understand the “should have” here in terms of duty, then this would mean saying, “You had
a duty to see the mule.” This is how both the court and the negligence externalist might put it.
We can describe things this way if we like. But, when we say this, I don’t think that we are
talking about “duty” in an action-guiding sense. It’s not describing some instruction stemming
from Moore’s moral status that Dashiell failed to follow. Rather, it’s simply a way of conveying
that “I didn’t see the mule” is no escape from moral liability. Our statement about a “duty to
see” is not really about some duty that made up the foundation of the liability. And, in fact, this
tracks pretty well what the actual court says: The so-called duty to see is a function of the fact
that the defendant will not be heard to say that he looked but didn’t see.

At this point in our imagined conversation, we might envision Dashiell replying in a different
(more exasperated) way:
Reply #2: “Well, what would you have wanted me to do?”
While there might be a temptation to try to answer this inquiry—a temptation that I think the
negligence tracer indulges too far—my point is that Moore doesn’t have to answer this reply.
(When I actually imagine the conversation, a sarcastic response like, “Um, not crash into a mule
when I’m in your car,” seems appropriate.) It is not the burden of the moral plaintiff to point to
some particular conduct beyond the conduct of noninjury. Prima facie answerability does not
include, as a grounding element, that a claim about what care would have involved—what the
defendant ought to have done deliberately. That’s not what a complaint of negligence requires.

There is a third, slightly different reply that we can imagine:

Reply #3: “There was no way that I could have seen the mule.”

37 Compare Honoré’s conception of “outcome responsibility.” See supra note 24. Like Honoré, I am claiming that

outcomes are the things for which we are called to account. But I am suggesting that responsibility is an essentially
dialogic concept, and that outcomes merely initiate that dialogue.

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This reply, unlike #1 and #2, does seem like an acceptable answer to the complaint—if true.
The trouble is that it seems terribly unlikely that it is true. This is the insight of the negligence
tracer. Almost undoubtedly, there is some precaution or self-training that might have avoided
the transgression. If there truly was not, then moral accountability does seem to be
inappropriate. But it is the defendant’s burden to show that there was nothing that could have
been done, and that is a very hard burden to meet.

My point in imagining these exchanges is to appreciate what our moral plaintiff does—and more
importantly, does not—need to say in order to get the wheels of responsibility churning. The
objective is to see what is required for negligence liability. When viewed in this way, I think that
breach of a duty need not be involved.

X.

Let me now sketch a second way in which the standpoint of justification—wherein we are called
upon to give reasons—does not align with the standpoint of deliberation—wherein we act on the
basis of reasons. I have thus far said very little about the late John Gardner’s excellent work on
duties to try and duties to succeed, to which I am greatly indebted and in significant sympathy.38
One might think that the distinction that I have emphasized between a duty to look and a (so-
called) duty to see is simply the difference between a duty to try and a duty to succeed. If that’s
correct, then my skepticism about a duty to see might be merely skepticism about duties to
succeed. If Gardner is correct that there can be duties to succeed (even though he did not regard
tort law’s duty of care as such39), then there should be no difficulty with the existence of a duty to
see.

So, can the duty to see be defended simply as a duty to succeed? Looking can appear to stand
with respect to seeing as trying does to succeeding. You want to see what is inside the house, so
you look through the window. Your looking would naturally be characterized as trying to see.
Seeing would count as success. So if there can be duties to succeed, then why not think that
there can be duties to see? Or, put another way, isn’t the puzzle posed by a duty to see just the
same as the general puzzle posed by duties to succeed?

I think that the problem with a duty to see runs deeper. There is a reason why I have focused on
it (and not simply the possibility of a duty to succeed). I am open to Gardner’s contention that
there can be duties to succeed—that morality sometimes involves strict liability. There may
indeed be actions that we have a duty to perform and yet, as fate would have it, no ability to
perform. To take Gardner’s examples: I might have a duty to save a drowning man in the water
and yet be unable to swim; I might have a duty to buy food for guests I’ve invited and yet find all
the stores closed due to a holiday. My duty is not simply a duty to try my best. In fact, I may
have no duty to try at all given that trying would be futile. Morality calls on me to save the man
or to feed my guests, not merely to try to do so. We can, as Gardner does, put this in terms of
reasons. I have a reason—a reason that is categorical and mandatory—to save the drowning
man or to feed my guests. It is my bad moral luck to have nothing that I can do to comply.

38See especially John Gardner, The Wrongdoing that Gets Results, 18 PHIL. PERSP. 1 (2004).
39See John Gardner, Obligations and Outcomes in the Law of Torts, in PETER CANE & JOHN GARDNER, EDS., RELATING
TO RESPONSIBILITY: ESSAYS FOR TONY HONORE (2001). Herstein, supra note 24, offers a strong contrary case.

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But seeing is different. Whereas we save drowning people or buy food for guests (typically)
because we have a reason to do so, we don’t see things because we have a reason to do so. It
makes sense to ask, “Why did you buy that food”? You can respond with your reason: “Because
I promised to feed my guests.” But suppose that I ask, “Why did you see the mule in road?” (My
toddler asks questions like that.) You would probably have little to say other than “because it was
there” or “because my eyes were open.” Those are not reasons that figure in deliberation.
Seeing is not something that we do for a reason in that sense.

A so-called duty to see, then, faces a special problem. If duties describe (special) reasons for
doing something and seeing is not something that we do for a reason, then it does not make sense
to talk about a duty to see. Duties to succeed make sense (if they do) because we can have
reasons to do something, even if we are unable to do it in a particular instance. They are still the
sort of thing that could figure in deliberation. A duty to see, on the other hand, would imply
reasons to do something which we do not do on the basis of reasons—an altogether different
story. It would be detached from ever figuring directly in deliberation. So I think it no
coincidence that talking of duties to succeed (e.g. a duty to save the drowning man) is quite
natural, but talk of a duty to see much less so.

And, yet, I do think that we are routinely called to answer for what we do and do not see. There’s
nothing at all toddler-like in the question, “Why didn’t you see the mule in the road?” So too with
questions like, “Why didn’t you see that I needed help?” or “Why didn’t you see that I was
upset?” Responding that not seeing wasn’t deliberate is hardly an answer. Here I think that the
negligence reflectors have something correct: we are responsible for our agency in a broad way,
not merely for our intentional acts. We are answerable for whether we see and feel as a person
ought, even though we don’t see or feel for particular reasons. Perception is an important part of
moral agency, even if it is not willed. Negligence is, fundamentally, about responsibility for not
seeing—not seeing the mule, not seeing the risk, not seeing one’s own limitations, not seeing the
discomfort on the other person’s face, etc. And, because seeing isn’t something that we do for a
reason, negligence highlights in this second way the divergence between the reasons of
deliberation and the reasons that we are called upon to give as justification.

XI.

Negligence involves, I think, a failure to see. Where it causes injury at least, that’s what we are
answerable for. The failure to see cannot be reduced into a failure to look. We can say that
negligence involves a duty to see, but, if we say that, we mean “duty” merely to indicate
something from which a party may be held accountable for deviating. It does not describe a
norm to which we can consciously conform. It’s not about telling us how to shape our
deliberations. It is about our perception—our attunement to the world around us—which is not
even reason-responsive, let alone reasoned.

And yet that is something for which we are accountable. We relate to others as having to answer
for it. Strawson famously reoriented discussions of responsibility away from pure facts about the
agent—determined or not—and towards our interpersonal practices.40 I take my suggestions

40 Peter Strawson, Freedom and Resentment, in 48 PROCEEDINGS OF THE BRITISH ACAD. 1 (1962).

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here to be within that spirit. But I am focused not on a stance that one person takes towards
another, but on bilateral engagement. Responsibility, as I see it, is the end result of something
that we do together. And that takes it quite far from being merely about the agent.

My metaphoric talk of burdens is meant to evoke this idea. It may, hopefully, make slightly less
obscure the apparent fact that there are some things for which we owe others reasons even
though we did not do those things under reasons. Not seeing is such a thing. Dashiell owes
Moore a reason why he didn’t see the mule even though not seeing the mule was not something
that he did under reasons. He is answerable for not seeing, which is quite different than saying
that he had a duty to see.

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