Negligence, Causation, and Incentives for Care
Keith N. Hylton
William Fairfield Warren Distinguished Professor, Boston University; Professor of Law, Boston University School of Law
April 30, 2013
Boston Univ. School of Law Working Paper No. 11-15
We present a new model of negligence and causation and examine the influence of the negligence test, in the presence of intervening causation, on the level of care. In this model, the injurer’s decision to take care reduces the likelihood of an accident only in the event that some nondeterministic intervention occurs. The effects of the negligence test depend on the information available to the court, and the manner in which the test is implemented. The key effect of the negligence test, in the presence of intervening causation, is to induce actors to take into account the distribution of the intervention probability as well as its expected value. In the most plausible scenario – where courts have limited information – the test generally leads to socially excessive care.
Number of Pages in PDF File: 28
Keywords: negligence, causation, proximate cause, factual causation, ex post negligence, optimal care
JEL Classification: D81, K00, K13, K41working papers series
Date posted: March 29, 2011 ; Last revised: April 30, 2013
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