Negligence-Based Proportional Liability: How More Lenient Sanctions Lead to Higher Compliance

Abstract

Over the past four decades, in an effort to help plaintiffs, US tort statutes have expanded strict liability, and courts have relaxed the causation requirement in negligence liability by often resolving factual doubts about causation in the plaintiff’s favor.This Article argues that this trend not only contributes to phenomena such as defensive medicine and overly high health care costs but, more surprisingly, also to more people and property being harmed due to negligent treatment and environmental disasters. This is true in the quite common scenarios in which courts suffer from hindsight bias or injurers lack sufficient assets to satisfy judgments against them. Both problems pervade important areas of tort law.This Article not only cautions against the use of strict liability but also argues for restoring a robust causation requirement in negligence liability. Specifically, this Article proposes a new default regime in torts called “negligence-based proportional liability.” This rule would account for causation in probabilistic terms. It would hold a negligent injurer liable for harm discounted by the probability that the harm was caused by the defendant’s breach of a duty. As a more lenient liability rule than what is generally contemplated by many US courts, negligence-based proportional liability reduces defensive behavior and increases compliance relative to all other liability regimes.