Contributory Negligence Research Articles

Optimal legal standards in negligence-based liability rules

Making use of the neoclassical production-function approach, four negligence-based liability rules are analysed in a noncooperative game,viz: The negligence rule, strict liability with contributory negligence, negligence with contributory negligence and strict liability with dual contributory negligence. The most remarkable result is that with the last two rules in force the socially optimal can also be attained in some situations in which only one of the two necessary legal standards of negligence (for the victim and for the injurer) is set at the socially optimal level.

Apportionment in Actions Against Auditors

Auditors are faced with an increasingly litigious environment. There are several options available to them. One is to seek apportionment with either clients or third parties by the application of the tenets of contributory negligence. Applications of this concept of contributory negligence in U.K. and British Commonwealth cases involving auditors are examined in this paper. Finally, there is a discussion of possible future developments of this branch of law as it affects the role and responsibilities of auditors.

Common Law Control of Strategic Behavior: Railroad Sparks and the Farmer

IN The Great Gatsby, Nick calls Daisy a rotten driver: Either you ought to be more careful or you oughtn't to drive at all. She answers that other people are careful. What's that got to do with Nick asks. Daisy replies, They'll keep out of my way. It takes two to make an accident.' Had this exchange been published to a different audience, maybe it would have launched the Fitzgerald Theorem. Perhaps Daisy would be impatient with Coase's detailed argument that social cost is reciprocal2 because she leaps intuitively to its necessary corollary: assuming two are needed to make an accident, what is to stop the one from obliging the other to do what is necessary to avoid it? Strategic behavior has swiftly become one of the dominant themes of modern law and economics. It is found in a wide range of accidents between strangers on the highway (as with Daisy) and elsewhere. The problem divulges the basic structure of negligence liability, where contributory negligence functions as a defense, be it whole or partial. The basic rules of the system, even in the simplest case, impose duties upon both parties when the precautions of each are substitutes for precautions

The Auditor, Third Parties and Contributory Negligence

The Auditor, Third Parties and Contributory Negligence

The economics of comparative negligence

Despite the prevalence of comparative negligence as a basis for liability in England, Canada and the United States, as well as admiralty law, the law and economics literature has generally ignored comparative negligence.’ This paper will extend Haddock and Curran’s conclusion that efficient care is induced by comparative negligence.2 It is shown that this result holds when the actors make sequential decisions as well as when they act simultaneously. Furthermore, comparative negligence can be efficient even if courts do not assign the relative degree of fault according to a unique formula, and all of the variations of comparative negligence are equally efficient in terms of care.3 One of the unrealistic features of the simplest economic models of negligence is that all of the actors are predicted to take the efficient amount of care, ruling out any findings of negligence or any damage awards. When the standard model is extended to allow for some negligent behavior by a minority of individuals who do not respond to the economic incentives, comparative negligence is shown to dominate alternative liability rules in terms of incentives for care. This provides an efficiency explanation, rather than a fairness or risk-sharing explanation, for the switch from negligence with contributory negligence to comparative negligence in Anglo-American jurisdictions.

Liability as a function of plaintiff and defendant fault.

Five groups of fictitious case outlines were prepared about a plaintiff who sued a defendant for damages. Within each group of cases, we independently manipulated evidence about the apparent fault (here labeled the propensity to fault) in the plaintiffs conduct and in the defendant's conduct, as well as evidence about the severity of the harm. Subjects rated the responsibility of the plaintiff and the defendant for the harm and assessed the liability against the defendant. The data were consistent with a hierarchical model of identification and attributional processes in which propensity influences responsibility, which in turn, influences liability. Analyses based on a measure of relative responsibility suggested that the rule, liability should be proportional to fault, was an inadequate description of the data. This finding is discussed in the context of the legal doctrines of contributory and comparative negligence.

The Efficiency of Comparative Negligence

UNTIL recently it has been thought that a negligence rule (with or without a contributory negligence defense) is economically efficient while a comparative negligence rule is not.' Haddock and Curran2 and Cooter and Ulen3 have corrected this misconception, arguing that it is possible to design an efficient comparative negligence rule. Cooter and Ulen have argued further that a comparative negligence rule is superior to a negligence rule when injurers and victims bear risk and there is evidentiary uncertainty.4

Tort Reform from Within

Most legislative proposals to solve the so-called malpractice crisis have been viewed by lawyers as attacks on lawyers and the legal system. Consequently, little thought has been given to whether we can find support for these proposals within the tort system. What I would like to suggest is that some of these proposals, including the increasingly popular cap on recovery for pain and suffering, are supported by the way the tort system has begun to look at injuries with several causes.Initially, the legal system refused to recognize that the damages resulting from an injury could be apportioned among the various causes. Although we always recognized that every event has several causes, the law placed responsibility on “the proximate cause,” often the cause closest to the injury.One of the first steps toward division of damages among causes was the replacement of contributory negligence with comparative negligence. Contributory negligence provided that if defendant and plaintiff were both negligent causes of the injury, plaintiff collected nothing.

No Apportionment for Contributory Negligence in Contract

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The simple economics of tort law: An organizing framework

This note outlines a general economic approach to the law of torts. It shows that all efficient rules must define negligent behavior as inefficient behavior and must hold an individual liable when he or she is negligent and the other actor is not. The note demonstrates how familiar rules such as strict liability with a defense of contributory negligence or simple negligence fit into this framework and argues that comparative negligence can also be efficient under a constitent economic approach.

Automobile Accident Compensation: Who Pays How Much How Soon?

Statistical methods are applied to national closed claims data and national survey data about automobile accident compensation. The empirical analysis confirms some conventional wisdom and reveals some surprises. As intended, no-fault schemes appear to increase the proportion of victims being compensated. Moreover, because fewer victims are paid general damages, payments to similarly situated victims vary less in no-fault states than in tort states. Even modest tort thresholds work surprisingly well in reducing the number of bodily injury insurance claims. Finally, the empirical evidence on the effects of shifting from contributory negligence to comparative negligence is weak.

On calculating optimal contributory negligence rules

This article considers the problem of finding the optimal rule for assigning liability on the basis of fault when there is (a) error in the assessment of fault, (b) a probability distribution of true fault across the population of possible litigants, and (c) a value attached to the deterrence effect of a rule. The discussion is placed in the legal context of Contributory Negligence, and parallels are drawn between the present approach and the ‘economic’ approach to liability. A contributory negligence rule is said to be optimal if it minimizes a weighted sum of the cost of assessment error and the cost of the deviation between a rule and the ‘optimally deterrent’ rule. It is shown that the form of the optimal rule depends on the ‘importance’ of deterrence and on the probability distribution of plaintiffs with respect to fault. Sufficient conditions are given for each of the extant contributory negligence rules to approximate the optimal rule. It is argued that, in designing the law, the preference among rules should be based on the relative plausibility of these sufficient conditions, some of which may be verifiable empirically.

An Economic Theory of Comparative Negligence

ONE of the central problems in the economic analysis of tort law is to determine the proper rules for allocating loss when both parties have engaged in wrongful conduct that has helped bring that loss about. In addressing this problem, most recent scholarship has been directed to the question of how to make an all-or-nothing allocation between plaintiff and defendant, usually in the guise of asking when the contributory negligence defense should bar a cause of action that is itself based on proof of the defendant's negligence. The academic inquiry is in some sense oddly conceived, as the clear direction in the modern cases is away from treating recovery for harm in this all-or-nothing manner. Indeed, the rule that treats contributory negligence as a total bar for recovery presently is operative only in a minority of states covering just over one-quarter of the population, and in precious few jurisdictions abroad. In the meantime, various systems of comparative negligence, which do divide damages between the plaintiff and defendant, have grown enormously in importance, so they now cover almost three-quarters of the American population, much of the rest of the industrialized world, and, in peacetime, virtually all ships at sea.' Notwithstanding its recent surge to dominance,

Contributory negligence as a defence to battery

At one time it would have been possible to say with firm confidence that contributory negligence was never a defence to battery except, perhaps when the conduct of the plaintiff was so clearly the cause of the harm that had befallen him that it could be treated as contributory intent.In more recent years, however, a number of qualifications to any such terse summary have appeared and somewhat surprising conflicts of opinion between various common law jurisdictions have arisen, both on the principal question and a number of associated problems.

The Contract-Tort Boundary and the Economics of Insurance

Previous articleNext article No AccessThe Contract-Tort Boundary and the Economics of InsuranceWilliam BishopWilliam Bishop Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 12, Number 2Jun., 1983 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467723 Views: 38Total views on this site Citations: 14Citations are reported from Crossref Copyright 1983 The University of ChicagoPDF download Crossref reports the following articles citing this article:Jef De Mot, Louis Visscher Custodian Liability, (Apr 2019): 510–514.https://doi.org/10.1007/978-1-4614-7753-2_541Jef De Mot, Louis Visscher Efficient Court Decisions and Limiting Insurers’ Right of Recourse: The Case of Custodian Liability in the Netherlands and Belgium, The Geneva Papers on Risk and Insurance - Issues and Practice 39, no.33 (Jul 2014): 527–544.https://doi.org/10.1057/gpp.2014.18Jef De Mot, Louis Visscher Custodian Liability, (Sep 2014): 1–6.https://doi.org/10.1007/978-1-4614-7883-6_541-1Michael Faure, Hui Wang Financial caps for oil pollution damage: A historical mistake?, Marine Policy 32, no.44 (Jul 2008): 592–606.https://doi.org/10.1016/j.marpol.2007.10.008MICHAEL G. FAURE Financial Compensation for Victims of Catastrophes: A Law and Economics Perspective, Law & Policy 29, no.33 (Jul 2007): 339–367.https://doi.org/10.1111/j.1467-9930.2007.00258.xMichael G Faure Economic Criteria for Compulsory Insurance, The Geneva Papers on Risk and Insurance - Issues and Practice 31, no.11 (Jan 2006): 149–168.https://doi.org/10.1057/palgrave.gpp.2510063Michael G. Faure Economic Criteria for Compulsory Insurance, SSRN Electronic Journal (Jan 2005).https://doi.org/10.2139/ssrn.977463Lucas Bergkamp Environmental Risk Spreading and Insurance, Review of European Community and International Environmental Law 12, no.33 (Nov 2003): 269–283.https://doi.org/10.1111/1467-9388.00369Lucian Arye Bebchuk, Steven Shavell Information and the Scope of Liability for Breach of Contract: The Rule of Hadley v. Baxendale, SSRN Electronic Journal (Jan 2003).https://doi.org/10.2139/ssrn.471883Johannes Köndgen, Philipp von Randow Sanktionen bei Vertragsverletzung, (Jan 1989): 122–140.https://doi.org/10.1007/978-3-642-74726-7_11Brian W. Semkow Social insurance and tort liability, International Review of Law and Economics 5, no.22 (Dec 1985): 153–171.https://doi.org/10.1016/0144-8188(85)90003-1Michael Faure The View from Law and Economics, (): 239–273.https://doi.org/10.1007/3-211-30631-5_10Michael Faure Financial Compensation in Case of Catastrophes: A European Law and Economics Perspective, (): 2–27.https://doi.org/10.1007/3-211-30875-X_1Michael Faure Comparative and Policy Conclusions, (): 389–452.https://doi.org/10.1007/3-211-33775-X_12

Traffic Accidents and Contributory Negligence—Insurance—A New Departure in France

Traffic Accidents and Contributory Negligence—Insurance—A New Departure in France

THE DOCTRINE OF STRICT LIABILITY: AN ALTERNATIVE APPROACH TO CONSUMER PROTECTION REGULATION

Using a legal system of strict liability allowing contributory negligence as a valid defense provides an alternative to consumer protection regulation. In addition, the strict liability system allows rapid and responsive compensation to injured individuals. Corporate uncertainty as to future costs and business environment are substantially reduced, thus allowing firms to make accurate and rational long‐term, strategic plans. This paper presents the basic functional constructs required for developing a viable regulatory framework using strict liability and then looks at an example where it could be employed. The scenario deals with an environmental pollution and protection problem. In the example, a strict liability system allowing for a defense of contributory negligence is shown to be conceptually more efficient and desirable than the existing regulatory system and negligence liability procedures.

Comparative Negligence

Traditionally, one of the standard defenses to a negligence action, including a professional liability suit, has been the doctrine of contributory negligence. This doctrine precludes recovery of damages by a person whose injury was, in part, caused by his or her own negligence, even if the negligence of the person being sued was also a proximate cause of the injury for which recovery would otherwise have been allowed. Courts have often been reluctant to apply the doctrine of contributory negligence because it can preclude recovery by a person whose negligence is substantially less than that of the person being sued. This is particularly true in professional liability actions due to the great disparity in medical knowledge between the patient and the physician. Thus, the defense of contributory negligence has been successful mainly in cases where the patient's conduct shows flagrant disregard for his own health or safety. To achieve more

Comparative negligence

Traditionally, one of the standard defenses to a negligence action, including a professional liability suit, has been the doctrine of contributory negligence. This doctrine precludes recovery of damages by a person whose injury was, in part, caused by his or her own negligence, even if the negligence of the person being sued was also a proximate cause of the injury for which recovery would otherwise have been allowed. Courts have often been reluctant to apply the doctrine of contributory negligence because it can preclude recovery by a person whose negligence is substantially less than that of the person being sued. This is particularly true in professional liability actions due to the great disparity in medical knowledge between the patient and the physician. Thus, the defense of contributory negligence has been successful mainly in cases where the patient's conduct shows flagrant disregard for his own health or safety. To achieve more

Knights Errant and the Law—Negligence—Rescuers—Duty—Causation—Foreseeability—Contributory Negligence

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