On the Optimal Scope of Negligence

Abstract

This article studies the optimal scope of negligence, considering which of the parties' precautionary measures should be included in the determination of negligence and which instead should be omitted. The analysis shows that the optimal scope of negligence balances the gains derived from improved accident prevention with the administrative costs of the system. This approach also provides insights concerning not only the notions of care and activity level and their respective boundaries, but also the choice between strict liability and negligence.Stat rosa pristina nomine, nomina nuda tenemus **

Have US Legislatures Fully Considered Causal Factors in Assigning Liability for Inherent Risk Accidents?

“…American law employs four major liability rules to assign accident losses: (1) no liability, (2) strict liability, (3) negligence, and (4) strict liability with the defense of contributory negligence (Shavell, 2003;Dari-Mattiacci, 2005). Under these liability rules, residual liability is assigned to activity providers or participants.…”

“…Tort liability is concerned with the level of care because as more precaution is employed to avoid an accident, the likelihood of injury is reduced. Due care embodies precautionary measures for which a duty of care has been established to avoid injury (Dari-Mattiacci, 2005). Theoretically, due care may be set at the level of care where the marginal costs of precaution are equivalent to the expected marginal reduction in accident losses.…”

“…An optimal level of activity occurs when the full social costs of an activity are less than or equal to its social benefits. Activity levels also include other precautionary measures for which a duty of care has not been established (Dari-Mattiacci, 2005). These other precautionary measures are not considered in a determination of negligence due to the excessive costs of observing them and calculating optimal levels of care.…”

“…The enunciation of conduct relating to the inherent risks of an activity addresses precautionary measures for which duties of care may not be assigned under negligence law. Under negligence, some precautionary measures are so complicated that they are omitted from the duty of care (Dari-Mattiacci, 2005). By assigning risks of conduct to participants, the statutes create a no-liability rule under which participants are completely liable for accidents that did not involve provider negligence.…”

Liability for Third-Party Harm When Harm-Inflicting Consumers Are Present Biased

“…Dari Mattiacci (2005) analyzes which of the injurer's precautionary measures should be included in the determination of negligence and which should not, considering particularly the gains derived from improved accident prevention and the administrative costs of the system.…”