42 Pages Posted: 29 Jun 2004 Last revised: 7 Apr 2011
This paper shows that the least cost avoider approach in tort is not necessarily the optimal way to attain least cost avoidance when accidents can be avoided by either of two parties. When parties do not observe each other's costs of care at the time of the accident and are unable to determine which party is the least cost avoider, they fail to anticipate the outcome of the adjudication. Under these circumstances, accident avoidance becomes a commons problem because care by each individual party reduces the prospect of liability for both parties. As a result parties suboptimally invest in care. We show that regulation removes this problem and is superior to tort liability both when parties act simultaneously and when they act sequentially. We further examine how different liability rules perform in this respect.
Keywords: tort, fine, precaution cost liability, last clear chance, least cost avoider
JEL Classification: K13, K32
Suggested Citation: Suggested Citation
Dari‐Mattiacci, Giuseppe and Garoupa, Nuno M., Least Cost Avoidance: The Tragedy of Common Safety. Journal of Law, Economics, and Organization, Forthcoming; George Mason Law & Economics Research Paper No. 04-27. Available at SSRN: https://ssrn.com/abstract=560062 or http://dx.doi.org/10.2139/ssrn.560062