Sharing Responsibility Instead of Allocating Blame: Reforming Torts and Reducing Accidents

Abstract

Imagine a pedestrian and driver both approaching a crosswalk. Both parties can take actions to prevent an accident, and traditional economic analysis of tort law recognizes the importance of making sure that both parties have an incentive to do so. However, traditional negligence rules can provide efficient incentives to both parties only under unrealistic ideal conditions. I propose a liability sharing rule that focuses on responsibility rather than blame, and apportions liability according to the degree to which each party’s actions made the accident more likely. The rule I propose forces each party to bear the costs of any additional risk that is imposed on the other party. Unlike current rules, this rule provides efficient incentives in the face of heterogeneous and imperfect actors, and it can be modified to maintain efficiency when courts imperfectly observe the parties’ actions. Furthermore, the rule I propose provides a coherent basis for apportioning liability, which is lacking in the existing comparative negligence doctrine. I argue that the proposed rule is a better fit with tort law’s preference for objective standards. Finally, the focus on responsibility rather than fault could foster a more effective, collaborative approach to preventing accidents.