Tailoring the Negligence Standard and a New Model of Injurer Skill

Abstract

The conventional law and economics method of modeling greater “capacity” in potential injurers – that especially capable individuals have lower marginal precaution costs – may be wrongheaded and misleading in many common accident scenarios. This Article formulates an alternative model, where precaution costs do not vary with injurer capacity, but where accident costs at a given level of care are lower for especially “capable” individuals. In particular, this model may better reflect reality and doctrine where 1) courts assess “due care” by examining discrete actions or precautions indicative of care; and 2) the relevant precautions are nondurable, such that the primary cost imposed is the opportunity cost of time or attention (which is unlikely to be lower for “skilled” injurers). The alternative model suggests that, contrary to the conventional wisdom, more capable injurers should be held to a lower standard of care whenever possible, and that the failure to do so serves as an impediment to innovation and development of skill. Finally, the new model also suggests a novel method of providing incentives to invest in innovation and skill.