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An Empirical Test of the Comparative and Contributory Negligence Rules in Accident Law

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  • Michelle J. White

Abstract

Scholars in the field of law and economics have developed an extensive theoretical literature on the effects of liability rules in accident law, but have done little testing of their theoretical models. In this article, I develop an empirically testable model of the incentives for injurers and victims to avoid accidents under both the older contributory negligence rule and the newer rule of comparative negligence. The model takes account of the fact that in the automobile accident context, drivers do not know in advance with whom they will be involved in an accident, and whether they will be the injurer or the victim, or both. It also allows for uncertainty in legal decision making. The model is tested using a data set of rear-end automobile accidents litigated in court. The results suggest, first, that incentives to take care to avoid accidents are stronger under the contributory negligence rule than under the newer rule of comparative negligence and, second, the incentives set up by the comparative negligence rule for drivers to avoid accidents are weaker than is economically efficient.

Suggested Citation

  • Michelle J. White, 1989. "An Empirical Test of the Comparative and Contributory Negligence Rules in Accident Law," RAND Journal of Economics, The RAND Corporation, vol. 20(3), pages 308-330, Autumn.
    • Handle: RePEc:rje:randje:v:20:y:1989:i:autumn:p:308-330
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    Cited by:

    1. Michelle J. White, 2006. "Asbestos Litigation: Procedural Innovations and Forum Shopping," The Journal of Legal Studies, University of Chicago Press, vol. 35(2), pages 365-398, June.
    2. De Mot, Jef & Faure, Michael & Klick, Jonathan, 2015. "Appellate caseload and the switch to comparative negligence," International Review of Law and Economics, Elsevier, vol. 42(C), pages 147-156.
    3. Daniel P. Kessler & Daniel L. Rubinfeld, 2004. "Empirical Study of the Civil Justice System," NBER Working Papers 10825, National Bureau of Economic Research, Inc.
    4. Dharmapala, Dhammika & Hoffmann, Sandra A. & Schwartz, Warren, 2001. "A Neglected Interdependency in Liability Theory," Discussion Papers 10626, Resources for the Future.
    5. Cohen, Alma & Dehejia, Rajeev, 2004. "The Effect of Automobile Insurance and Accident Liability Laws on Traffic Fatalities," Journal of Law and Economics, University of Chicago Press, vol. 47(2), pages 357-393, October.
    6. Giuseppe Dari-Mattiacci & Gerrit De Geest, 2005. "The Filtering Effect of Sharing Rules," The Journal of Legal Studies, University of Chicago Press, vol. 34(1), pages 207-237, January.
    7. Manning, Richard L, 1994. "Changing Rules in Tort Law and the Market for Childhood Vaccines," Journal of Law and Economics, University of Chicago Press, vol. 37(1), pages 247-275, April.
    8. Dari-Mattiacci Giuseppe & Hendriks Eva S., 2013. "Relative Fault and Efficient Negligence: Comparative Negligence Explained," Review of Law & Economics, De Gruyter, vol. 9(1), pages 1-40, June.
    9. Fluet, Claude, 2010. "Liability rules under evidentiary uncertainty," International Review of Law and Economics, Elsevier, vol. 30(1), pages 1-9, March.
    10. White, Michelle J, 2004. "The "Arms Race" on American Roads: The Effect of Sport Utility Vehicles and Pickup Trucks on Traffic Safety," Journal of Law and Economics, University of Chicago Press, vol. 47(2), pages 333-355, October.
    11. Friehe, Tim, 2009. "Sequential torts and bilateral harm," International Review of Law and Economics, Elsevier, vol. 29(2), pages 161-168, June.
    12. Allan M. Feldman & Jeonghyun Kim, 2003. "Victim or Injurer:Negligence-Based Liability Rules Under Role-Type Uncertainty, With An Extension to Collisions Of Different-Sized Vehicles," Working Papers 2003-17, Brown University, Department of Economics.
    13. Vereeck, Lode & Vrolix, Klara, 2007. "The social willingness to comply with the law: The effect of social attitudes on traffic fatalities," International Review of Law and Economics, Elsevier, vol. 27(4), pages 385-408, December.
    14. Kim, Jeonghyun & Feldman, Allan M., 2006. "Victim or injurer, small car or SUV: Tort liability rules under role-type uncertainty," International Review of Law and Economics, Elsevier, vol. 26(4), pages 455-477, December.
    15. Sloan, Frank A & Stout, Emily M & Liang, Lan & Whetten-Goldstein, Kathryn, 2000. "Liability, Risk Perceptions, and Precautions at Bars," Journal of Law and Economics, University of Chicago Press, vol. 43(2), pages 473-501, October.
    16. Eric Helland & Jonathan Klick & Alexander Tabarrok, 2005. "Data Watch: Tort-uring the Data," Journal of Economic Perspectives, American Economic Association, vol. 19(2), pages 207-220, Spring.
    17. Ogden, Benjamin G. & Hylton, Keith N., 2020. "Incentives to take care under contributory and comparative fault: The role of strategic complementarity," International Review of Law and Economics, Elsevier, vol. 61(C).

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