Double-Edged Torts

26 Pages Posted: 23 Oct 2012 Last revised: 11 Dec 2013

See all articles by Barbara Luppi

Barbara Luppi

University of St. Thomas School of Law; Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Daniel Pi

Mitchell Hamline School of Law

Date Written: December 9, 2013

Abstract

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.

Keywords: role-uncertainty, specialized care, hybrid care, Restatement (Third) of Torts (2005) Sec. 3

JEL Classification: K13, K32

Suggested Citation

Luppi, Barbara and Parisi, Francesco and Pi, Daniel, Double-Edged Torts (December 9, 2013). St. Thomas University School of Law Research Paper; Minnesota Legal Studies Research Paper No. 12-57. Available at SSRN: https://ssrn.com/abstract=2165862 or http://dx.doi.org/10.2139/ssrn.2165862

Barbara Luppi

University of St. Thomas School of Law

2115 Summit Avenue
Saint Paul, MN 55105
United States

Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics ( email )

Viale Berengario 51
41100 Modena, Modena 41100
Italy

Francesco Parisi (Contact Author)

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

University of Bologna ( email )

Piazza Scaravilli 1
40126 Bologna, fc 47100
Italy

Daniel Pi

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

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