Presumption of Negligence and the Robustness of Liability Incentives

21 Pages Posted: 6 Mar 2019

See all articles by Alice Guerra

Alice Guerra

Copenhagen Business School

Barbara Luppi

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

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Date Written: February 11, 2019

Abstract

In negligence regimes, tort plaintiffs traditionally bear the burden of proving the negligence of their defendants. Several European legal systems adopted rules that have reversed this traditional evidentiary rule in certain categories of torts, creating a rebuttable presumption of negligence against defendants. Under this presumption, the tortfeasor faces the burden of proving to have met the standard of due care to rebut the legally created presumption of negligence. This paper analyzes the conditions under which it might be optimal to shift evidentiary burdens, creating a presumption of negligence which the defendant must affirmatively rebut. We analyze the effects of legal presumptions on care and activity levels incentives. Our analysis reveals that a change in presumptions can increase the robustness of care incentives in the face of probatory difficulties and operates as an activity-level tax which can mitigate the activity level of the party who is not already burdened by residual liability. We suggest that the interaction between evidence and substantive tort rules is an important dimension that should inform the choice of legal presumptions.

Keywords: Burden of Proof, Legal Presumptions, Torts

JEL Classification: K13, K32

Suggested Citation

Guerra, Alice and Luppi, Barbara and Parisi, Francesco, Presumption of Negligence and the Robustness of Liability Incentives (February 11, 2019). Available at SSRN: https://ssrn.com/abstract=3334448 or http://dx.doi.org/10.2139/ssrn.3334448

Alice Guerra (Contact Author)

Copenhagen Business School ( email )

Porcelænshaven 24A
Frederiksberg, 2000
Denmark
+45 15 35 37 (Phone)

HOME PAGE: http://sites.google.com/site/aliceguerrahome/home

Barbara Luppi

University of St. Thomas School of Law

2115 Summit Avenue
Saint Paul, MN 55105
United States

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

Viale Berengario 51
41100 Modena, Modena 41100
Italy

Francesco Parisi

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

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