Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics; University of St. Thomas School of Law
University of Minnesota - Law School; University of Bologna
University of Bologna - Department of Economics; Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics; University of Hamburg - Institute of Law and Economics
December 9, 2013
St. Thomas University School of Law Research Paper
Minnesota Legal Studies Research Paper No. 12-57
Traditional economic models of tort law assign determinate roles to parties, modeling their behavior as if parties knew in advance whether fate would cast them in the roles of “tortfeasors” or “victims.” However, for a large class of activities, individuals take precautions ignorant of whether they will be tortfeasors or victims, or indeed whether they will be involved in an accident at all. Further complicating the issue, there exists a category of precautions, which courts have not hitherto recognized, and which we call “hybrid precautions,” that reduce both the probability of being a tortfeasor and the probability of being a victim. In this paper, we extend the standard model to account for such cases of roleuncertainty and hybrid precaution, finding that incentives are not, as previously assumed, simply additive. We analyze and reassess the standard tort regimes under this new framework. From a policy perspective, we find that the traditional formulation of negligence fails to incentivize efficient care levels. We argue instead for a modification that does effect efficient precautionary efforts.
Number of Pages in PDF File: 26
Keywords: role-uncertainty, specialized care, hybrid care, Restatement (Third) of Torts (2005) Sec. 3
JEL Classification: K13, K32
Date posted: October 23, 2012 ; Last revised: December 11, 2013
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