Toward a New Paradigm for Multiple-Victim Torts: The Problem of Victims Heterogeneity

54 Pages Posted: 6 Sep 2008 Last revised: 7 Apr 2015

See all articles by Yoed Halbersberg

Yoed Halbersberg

Hebrew University of Jerusalem - i-Core Center for Empirical Studies of Decision Making and the Law; Hebrew University of Jerusalem - Faculty of Law

Date Written: February 3, 2013

Abstract

Conventional wisdom in tort law holds that an injurer’s negligence, a product design defect, and a victim’s contributory negligence should all be decided by weighing the costs and benefits of the relevant activity. In multiple-victim accidents, the current paradigm maintains that liability should be determined by comparing aggregate costs with aggregate benefits.

However, this aggregate liability paradigm — adopted by courts, scholars and the Restatement (Third) of Torts — fails to account for the natural differences that exist between tort victims. When victims are heterogeneous with regard to their expected harm or costs of precaution — as they typically are in real life — basing liability on aggregate amounts may be incorrect, and generate over-deterrence in some cases and under-deterrence and dilution of liability in other. A new paradigm for liability in multiple-victim torts is, therefore, needed.

This Article suggests a novel and superior liability regime for multiple-victim accidents, which forsakes the traditional economic distinction between precaution costs and expected harm. The new liability regime combines disaggregated liability analyses with indemnification for efficient investment in precautions and a small “bonus,” given as an incentive to exercise efficient care.

On September 20th, 2012, this paper was awarded the Göran Skogh Award for the Most Promising Paper Presented at the 2012 EALE Conference.

Suggested Citation

Halbersberg, Yoed, Toward a New Paradigm for Multiple-Victim Torts: The Problem of Victims Heterogeneity (February 3, 2013). Available at SSRN: https://ssrn.com/abstract=1264464 or http://dx.doi.org/10.2139/ssrn.1264464

Yoed Halbersberg (Contact Author)

Hebrew University of Jerusalem - i-Core Center for Empirical Studies of Decision Making and the Law ( email )

Mount Scopus
Jerusalem, IL Jerusalem 91905
Israel

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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