Negligence-Based Proportional Liability: How More Lenient Sanctions Lead to Higher Compliance

Alexander Stremitzer

UCLA School of Law

April 1, 2012

UCLA School of Law, Law-Econ Research Paper No. 12-10

Over the past four decades, in an effort to help plaintiffs, US tort statutes have expanded strict liability, and courts have relaxed the causation requirement in negligence liability by often resolving factual doubts about causation in the plaintiff’s favor.

This Article argues that this trend not only contributes to phenomena such as defensive medicine and overly high health care costs but, more surprisingly, also to more people and property being harmed due to negligent treatment and environmental disasters. This is true in the quite common scenarios in which courts suffer from hindsight bias or injurers lack sufficient assets to satisfy judgments against them. Both problems pervade important areas of tort law.

This Article not only cautions against the use of strict liability but also argues for restoring a robust causation requirement in negligence liability. Specifically, this Article proposes a new default regime in torts called “negligence-based proportional liability.” This rule would account for causation in probabilistic terms. It would hold a negligent injurer liable for harm discounted by the probability that the harm was caused by the defendant’s breach of a duty. As a more lenient liability rule than what is generally contemplated by many US courts, negligence-based proportional liability reduces defensive behavior and increases compliance relative to all other liability regimes.

Number of Pages in PDF File: 74

Keywords: tort law, strict liability statutes, safety regulations, environmental tort law, medical malpractice

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Date posted: June 21, 2012 ; Last revised: June 28, 2012

Suggested Citation

Stremitzer, Alexander, Negligence-Based Proportional Liability: How More Lenient Sanctions Lead to Higher Compliance (April 1, 2012). UCLA School of Law, Law-Econ Research Paper No. 12-10. Available at SSRN: https://ssrn.com/abstract=2088977 or http://dx.doi.org/10.2139/ssrn.2088977

Contact Information

Alexander Stremitzer (Contact Author)
UCLA School of Law ( email )
405 Hilgard Avenue
Box 90095-1476
Los Angeles, CA 90095-1476
United States
HOME PAGE: http://www.law.ucla.edu/faculty/all-faculty-profiles/professors/Pages/Alexander-Stremitzer.aspx
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