Defense Of Contributory Negligence Research Articles

Lei Geral de Proteção de Dados Pessoais: uma análise econômica sobre o seu regime de responsabilidade

Considering the controversies related to the Brazilian General Data Protection Law (LGPD) liability regime, this paper aims to examine the kind of liability which would be more efficient as the one capable to maximize social welfare, pursuant to Law and Economics Theory. After a brief study over the liability regimes, a doctrinal discussion concerning this paper theme is presented followed by its economic analysis. We conclude that LGPD authorizes the construction of two distinct regimes: strict, to consumer relations and negligence rule with the defense of contributory negligence, to other cases. We verify that more precaution is not always socially desirable and that the outcome shall be efficient provided that the potential offender assumes the burden of evidence costs. Thereby, the liability regime may be the strict one or the negligence rule with the defense of contributory negligence. Specifically, in consumer relations the strict liability seems to be more efficient.

On the Choice of Liability Rules

Abstract Legal assignment of liabilities for losses arising out of interactions involving negative externalities usually depend on which of the interacting parties are negligent and which are not. It has been established in the literature that, if negligence is defined as failure to take some cost-justified precaution then there is no liability rule which can always lead to an efficient outcome. The objective of this paper is to try and understand if it is still possible to make pairwise comparisons between rules on the basis of efficiency and to use such a method to explain/evaluate choices from a given set of rules. We focus on a set of five of the most widely analyzed rules (no liability, strict liability, negligence, negligence with the defense of contributory negligence and strict liability with the defense of contributory negligence), and use a binary relation according to which a rule in the set is considered to be at least as efficient as another if and only if the set of applications for which it is inefficient is a subset of the set of applications for which the other one is inefficient. We show that, with respect to the above mentioned relation, pairwise comparisons between rules in this set fail. The paper, thus, demonstrates that an efficiency based explanation for any choice from these five rules is not consistent with the notion of negligence defined as failure to take some cost-justified precaution.

Last Clear Chance: A Defense To A Defense

This case problem will provide the student with the familiarity that they will need for the concepts of contributory negligence and last clear chance. It should also be noted that the concept of last clear chance is on the wane as a legal maxim. It is applicable in states that still use the legal defense of contributory negligence. Whereas in other states, which constitute the majority, the courts apply the concept of comparative negligence, which apportions the monetary damages given by the fact finder. There may be other considerations depending upon the country of the legal action, as this case study is based solely on United States laws.

On the political economy of public safety investments

This paper explores the interaction of private precaution and public safety investments that are determined in a political process. We distinguish between a scenario in which the median-voter victim influences public safety and one in which the injurer lobbies the public agent, analyzing both negligence and strict liability with a defense of contributory negligence for each scenario. We establish that the levels of injurer and victim care are always socially optimal for the equilibrium level of public safety. However, the equilibrium level of public safety differs from its first-best level and drastically depends on both the specifics of the political process and the liability rule applied. This implies that, in contrast to results from the classic literature, the level of social costs is critically determined by the choice between liability rules (for a given political process).

The Defence of Contributory Negligence in (Medieval) Canon Law and in Conflict Resolution in Italy in the Early Modern Period

Article The Defence of Contributory Negligence in (Medieval) Canon Law and in Conflict Resolution in Italy in the Early Modern Period was published on August 1, 2014 in the journal Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung (volume 100, issue 1).

Report on Contribution after Settlement Under the Negligence Act

The Negligence Act implements a number of policy goals for British Columbia: it creates a partial defence of contributory negligence, provides rules on apportionment of fault between wrongdoers, and establishes rights to contribution and indemnity between wrongdoers. This report tackles a relatively narrow range of issues that arise from how the courts have interpreted that last policy goal in the context of multiparty litigation. When responsibility for an injured party’s monetary loss or damages rests with more than one wrongdoer it is often difficult to get all the parties to agree to a settlement of the claim. In these circumstances some of the parties may be willing to enter into what may be called a partial settlement — that is, a settlement that purports to settle only a part of the injured party’s total claim with some, but not all, of the wrongdoers.In British Columbia it can be challenging to conclude a partial settlement because of the way in which the Negligence Act’s rules on contribution and indemnity are applied. Case law makes it clear that the non-settling wrongdoers retain their rights to contribution and indemnity from the settling wrongdoers. This undercuts the finality typically expected of a settlement agreement and thereby dramatically reduces the incentives for a wrongdoer to enter into a partial settlement. Sophisticated parties have found ways to craft partial settlements that blunt the full force of these rules, but in the BCLI’s view a legislative amendment would provide a clearer and more certain resolution of the issues. Creating incentives to settle complex, multiparty litigation will provide benefits both for the specific parties and for British Columbians generally.This report discusses the development of British Columbia law on contribution after a partial settlement, canvasses the options for reform, and sets out the BCLI’s final recommendations for reform of the law. It includes draft legislation, which illustrates how these recommendations may be implemented.

Cumulative Harm, Products Liability, and Bilateral Care

We extend consideration of cumulative harm in products liability to the case of bilateral care. For this specification, the level of care and the level of output chosen by the firm are inextricably interrelated, and different liability regimes yield different combinations of care and output. As in the case of bilateral care with proportional harm, strict liability by itself leads to moral hazard on the part of the consumer, but strict liability with a defense of contributory negligence on the part of the consumer is now a resilient (that is, both robust and convergent) liability rule when harm is cumulative.

Civil Liability of Expert Witnesses in the Netherlands: A Case Note to the UKSC Judgment in Jones v. Kaney

Abstract: The central issue of this case note is how the civil liability of expert witnesses is dealt with by Dutch law. According to Dutch law, there is neither immunity for expert witnesses nor a statutory limitation to their liability. A distinction is drawn between two types of expert witnesses: expert witnesses that are contracted by one or more of the parties to a conflict and expert witnesses that are appointed by court. The distinction between the party expert witness and the court-appointed expert witness determines the regime that governs the liability of the expert witness: contract law or tort law, respectively. In determining the liability of the expert witness, one should distinguish between different types of damages. Both a party expert witness and a court-appointed expert witness can limit their liability contractually. In most cases, expert witnesses who are being sued can successfully escape liability by invoking the defence of contributory negligence. There is no evidence that exposure to liability negatively influences the willingness to be appointed or contracted as an expert witness.

Przyczynienie się do powstania szkody w prawie cywilnym oraz jego aspekty prawnokarne

The paper aims at description of the legal notion and consequences of contribution (przyczynienie się), a civil law institution similar but not equivalent to the common law defense of contributory negligence. In Polish law contribution can be applied not only in law of torts, but also in contract law. If a court fi nds that a claimant has contributed to the damage, claimant’s award should be reduced by the percentage of contribution made by him to the loss or damage suff ered. The paper approaches the controverce, whether to establishing contribution it is essential to prove solely the fact that the claimant’s behaviour contributed to the damage, or it is addition- ally necessary to prove that this behaviour was objectively improper, negligent or even intentional. In this regard the paper invokes and examines theses of the case law of the Polish Supreme Court. The paper also scrutinises possible consequences of the victim contribution in criminal law.

Victim interdependence in the accident setting

This paper considers the case in which potential victims affect each other by taking care. Analyzing standard liability rules, we show that the rule of strict liability with a defense of contributory negligence is in the best position to induce the efficient outcome, i.e., this liability rule ensures efficiency if victims affect each other negatively, that is care by one victim increases the accident exposure of other victims. This rule also makes attainment likely if victims affect each other positively, that is if care by one victim decreases the accident exposure of other victims. In contrast, other standard liability rules fail to induce first-best care.

Efficiency of Liability Rules with Role-Type Uncertainty

In the law and economics literature the question of efficiency of liability rules has primarily been analyzed in the context of two-party interactions in which identities of the victim and the injurer in case of occurrence of accident, are a priori certain. The main conclusion that has emerged is that while various negligence rules as well as the rule of strict liability with the defense of contributory negligence are efficient, the rules of no liability and strict liability are not. This paper shows that if the identities of the victim and the injurer in case of occurrence of accident are a priori uncertain then efficient apportionment of accident losses can be achieved only under very restrictive assumptions.

On judgment proofness in the case of bilateral harm

This paper defies the widely held belief concerning the unambiguous superiority of negligence in settings of judgment proofness. We analyze a set-up with bilateral harm, bilateral care, and potential judgment proofness by one party to the accident. We establish that strict liability with a defense of contributory negligence can perform better than simple negligence and negligence with a defense of contributory negligence. It is shown that the former liability rule can better establish a discontinuity in individual costs conducive to inducing efficient care than the other rules.

A Note on the Equivalence Between Contractual and Tort Liability Rules

The aim of this paper is to conciliate some conclusions of the economic theories of breach of contract and tort law. The main result is that the two efficient alternatives that tort law identifies (negligence rule and strict liability with a defense of contributory negligence) are mirrored by two efficient ways of defining contract damages. The first consists of forcing the debtor to pay expectation damages but limiting the level of the creditor's reliance (rule of damage mitigation). The second consists of obliging the debtor to pay expectation damages only when his breach of contract implies negligence, otherwise using restitution remedies (doctrines of impracticability and force majeure).

The Externality of Victim Care

This essay identifies a flaw in the model currently employed to evaluate the economic consequences of common law liability rules in a joint care setting. The conventional model, it is shown, does not account for the externality of victim care, that is, the cost of victim care induced by injurer activity in a joint care setting. Recognition of this externality has important implications. In particular, the article demonstrates that neither negligence nor strict liability with a defense of contributory negligence will cause injurers to internalize the externality of victim care. Thus, neither liability rule will induce optimal injurer activity, even in those instances in which joint due care eliminates accident risk. Absent imposition of a Pigouvian tax, neither regime will induce efficient activity choices by the injuring party. Identification of the externality of victim care suggests the existence of a second externality, the externality of injurer care. Neither negligence nor strict liability with a defense of contributory negligence will cause victims to internalize this cost when making activity choices. Absent imposition of a Pigouvian tax, even a negligence regime will not induce optimal activity choices by the victim. The essay also offers some observations about the source of the oversight identified here as well as the implications of that oversight for the positive economic theory of tort law. The failure previously to identify the externality of victim care may reflect undue reliance on the farmer-railroad exemplar as a vehicle for examining the effects of various liability rules. Restrictive assumptions associated with this example, it is shown, inadvertently conceal the externality of victim care and produce conclusions that are not generalizable. Relaxation of these assumptions reveals this externality and allows construction of a model that can produce generalizable conclusions. Moreover, recognition of this externality may actually bolster the positive economic theory by, for instance, explaining the absence of a contributory negligence defense to torts premised on strict liability.

Limited Liability and Imperfect Information—On the Existence of Safety Equilibria Under Products Liability Law

In the literature on the economics of tort law the Cournot-Nash equilibrium concept has been undisputed. In particular, the existence of a Cournot-Nash safety equilibrium has been taken for granted, given the usual convexity assumptions. In this paper a simple model of strict liability with the defence of contributory negligence is considered. Liability is assumed to be limited. It is shown that for a certain range of liability limits no Cournot-Nash safety equilibrium in pure strategies exists. A mixed strategy equilibrium exists but it turns out to be suboptimal.

Implications Of the AWA Decision For External Auditors, Internal Auditors And Management

The decision in AWA Ltd v Daniels has important implications for auditors, directors and other professionals providing accounting services to clients. Previously, where the external auditor had been negligent, Australian courts awarded full damages against the auditor in favour of the plaintiff In AWA, a defence of contributory negligence succeeded and damages were apportioned between the company and the external auditor. Also, the auditor succeeded in a claim for contribution against the chief executive officer. This paper analyses the implications of the AWA decision for internal and external auditors and management. It examines issues related to contributory negligence and contribution. These issues are important in the light of recent discussion about reform of the law concerning “proportional” liability.

Preference revelation in strict liability product safety markets

Strict liability rules in markets where product safety is an issue have two potential justifications that have been put forth in the literature. The most common justification is that strict liability provides incentives to producers to supply safe products. This notion is often based on an idea of persisting consumer misperceptions regarding the quality, or riskiness, of the products, as analyzed by Spence (1977) and Danzon (1984). The incidence of product-related accidents may, however, also depend on the consumers’ incentives to take precautions. A potential problem with strict liability regulation from this point of view is therefore that provision of safetyenhancing incentives to producers may provide disincentives to precautionary activities for consumers. This point was forcefully made by Oi (1973). He concluded that proper incentives to consumers often are more appropriate than producer liability to address the accident problem. Another justification for product liability regulation, which has been advocated by Epstein (1985), is that regulation provides better insurance coverage for risk-averse consumers as compared to an imperfect market insurance system.’ Strict liability does indeed provide comprehensive insurance coverage, but it is not obvious that the incentive problems regarding the consumers are less in a regulated environment as compared to a market setting. The opposite view is more widely held and was stated by Rea (1985) in a direct comment to Epstein (1985). In response to this criticism, strict liability rules are usually modified with the defense of contributory negligence to take account of consumer incentives. This joint incentive scheme has also dominated the theoretical literature on liability rules, but also relationships between strict liability, safety regulation, and social insurance have been explored.3 This literature has established that strict liability with the defense of

The Relationship of Alternative Negligence Rules to Litigation Behavior and Tort Claim Disposition

Recently most states have abandoned the traditional tort defense of contributory negligence and substituted a form of comparative negligence. Using an extensive data set of auto accident injury claims, we provide evidence on the relationship between negligence rules and claimants' litigation decisions to retain attorneys, file lawsuits and litigate versus settle out of court. Litigation choices appear to be rational responses to the varying incentives created by alternative tort standards. We find that in contrast to comparative negligence, claims arising under comparative negligence are associated with greater probabilities of attorney involvement, higher average award levels, and longer delays in securing payment. Only 37% of claims involving attorneys in contributory negligence states result in a lawsuit being filed compared to 49% and 47% under the pure and modified forms of comparative negligence, respectively. The study provides the first statistical evidence on the litigation costs of the new forms of comparative negligence.

The Relationship of Alternative Negligence Rules to Litigation Behavior and Tort Claim Disposition

Recently most states have abandoned the traditional tort defense of contributory negligence and substituted a form of comparative negligence. Using an extensive data set of auto accident injury claims, we provide evidence on the relationship between negligence rules and claimants' litigation decisions to retain attorneys, file lawsuits and litigate versus settle out of court. Litigation choices appear to be rational responses to the varying incentives created by alternative tort standards. We find that in contrast to comparative negligence, claims arising under comparative negligence are associated with greater probabilities of attorney involvement, higher average award levels, and longer delays in securing payment. Only 37% of claims involving attorneys in contributory negligence states result in a lawsuit being filed compared to 49% and 47% under the pure and modified forms of comparative negligence, respectively. The study provides the first statistical evidence on the litigation costs of the new forms of comparative negligence.

The Law Reform Act 1945 and Breaches of Contract

The almost complete judicial silence concerning the application of the Law Reform (Contributory Negligence) Act 1945 ('The 1945 Act') to breaches of contract has been broken in the last few years by a handful of cases. Whilst an attempt has been made at a systematic breakdown of the types of breach to which the 1945 Act should apply, it seems that it has not been completely accepted, and it is a pity that in the two most recent Court of Appeal cases on the subject Forsikringsaktiselskapet Vesta v Butcher' and Tennant Radiant Heat v Warrington District Council2 the House of Lords has not been called upon to consider the matter. There can be no doubt that the 1945 Act should apply in a contractual context at least to some extent, and that it does so. Given that the received view is that there is no common law defence of contributory negligence to a breach of contract,3 its application is necessary to avoid the iniquitous situation whereby a negligent plaintiff can avoid his partial liability by electing to sue in contract rather than in tort, reminiscent of Mrs Letang's attempt to circumvent the Limitation Act by suing in trespass rather than in negligence.4 On the other hand, the language of the 1945 Act does not lend itself to the view that the defence of contributory negligence is open to all breaches of contract; it calls for 'fault' on both sides,5 and so is unsuitable for non-negligent breaches of contract. Thus, two different situations arise, each calling for different applications of the 1945 Act: when the contract is breached in such a way as to render it tortious, it should be treated as such for the purposes of the 1945 Act; where, however, the breach has occurred without fault by the defendant, he cannot plead that the damages should be reduced by the plaintiff under the 1945 Act. This leads to the illogical situation whereby the greater the culpability of the contract-breaker, the less he may have to pay the party injured (albeit partly through this own fault): innocent breaches may cost the defendant dear, notwithstanding the plaintiff's own negligence. However, this is the only means of reconciling the wording of the 1945 Act with the situation, although a solution may be forthcoming from other branches of the rules as to damages.6 Hobhouse J, sitting at first instance in Vesta v Butcher,7 was the first English judge to lay down categories of case for the purpose of applying the 1945 Act to breaches of contract:8