YISS LE Lecture10
YISS LE Lecture10
Yonsei University
Comparative negligence
International Summer School (textbook, page 248)
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Evidentiary uncertainty
• Suppose that, in a negligence case, it is not certain how
the court will evaluate the evidence developed at trial.
Thus, neither the plaintiff nor the defendant can be
certain whether the court will determine that their
precautionary behavior was sufficient to absolve one of
them of fault.
• The court may determine that the precaution of one of
the parties was insufficient, even though that party
thought that he or she had complied with the relevant
duty to take due care. Or the court may find one of the
parties nonnegligent when in fact the party was violating FIGURE 7.2 Evidentiary uncertainty smooths thediscontinuity at
the legal standard of care. the legal standard of care and induces extra precaution by the
potential injurer.
• We may call this condition “evidentiary uncertainty.
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• The effect of evidentiary uncertainty is to smooth the • Evidentiary uncertainty will cause overprecaution relative
discontinuity in expected liability at the (presumed) legal to the efficient level of precaution. This result is true
standard that we developed in Chapter 6. under any form of the negligence rule.
• Smoothing occurs because injurers’ expected costs are • The overprecaution caused by evidentiary uncertainty is
a weighted average of their costs when liable and their less under comparative negligence than it is under any
costs when not liable, with the weights given by the other form of the negligence rule.
probability that they will be found liable. • The simple reason is that under comparative negligence,
• The effect is indicated in Figure 7.2 by the sloping curve when both parties are negligent, the losses are shared
that connects the expected-cost curve and between the two parties rather than being concentrated
precautionary-cost line. on one party.
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