The Legal Duty to Incorporate Mistakes of the Victim

TEORIA DE JUEGOS Y DERECHO CONTEMPORANEO, (GAME THEORY AND CONTEMPORARY LAW), Instituto Technológica Autónomo de México and George Mason University, eds., p. 341-368, Mexico City: Editorial Porrúa 2009

RILE Working Paper Series No. 2008/11

25 Pages Posted: 6 Jun 2008 Last revised: 14 Sep 2010

See all articles by Louis T. Visscher

Louis T. Visscher

Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics; Erasmus University Rotterdam (EUR) - Erasmus School of Law

Date Written: June 5, 2008

Abstract

In many jurisdictions, potential injurers are under a legal duty to incorporate possible mistakes of the potential victim. I distinguish three types of mistakes. First, victims might make mistakes because it is too costly to avoid them (e.g. little children in traffic). Second, the actual care level of an actor might sometimes be a bit above, and sometimes a bit below his average care level. Third, people might choose a lower care level than is optimal for them, even though they were able to take optimal care. This is the type of mistake I analyze in this paper. I argue on the basis of a game theoretical analysis that the duty to incorporate such mistakes might frustrate the preventive goal of tort law, because it decreases the care incentives provided to the victim, while simultaneously increasing the care incentives for the injurer. I provide examples of the legal duty to incorporate possible mistakes of the victim from different legal systems. I discuss the doctrine of the Last Clear Chance, as well as Donald Wittmans idea of Marginal Cost Liability. In cases where this idea is not feasible, I argue that the defense of comparative negligence might be a good alternative.

Keywords: Comparative Negligence, Contributory Negligence, Game Theory, Last Clear Chance, Marginal Cost Liability, Mistakes, Tort Law

JEL Classification: C72, K13

Suggested Citation

Visscher, Louis T., The Legal Duty to Incorporate Mistakes of the Victim (June 5, 2008). RILE Working Paper Series No. 2008/11. Available at SSRN: https://ssrn.com/abstract=1141210

Louis T. Visscher (Contact Author)

Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics ( email )

Burgemeester Oudlaan 50
PO box 1738
Rotterdam, 3000 DR
Netherlands

Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands
+31 (10) 408 1833 (Phone)
+31 (10) 408 9191 (Fax)

HOME PAGE: http://frg.sin-online.nl/staff/index.html?lia=227

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