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Negligence and two-sided causation

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Abstract

We extend the economic analysis of negligence and intervening causation to “two-sided causation” scenarios. In the two-sided causation scenario the effectiveness of the injurer’s care depends on some intervention, and the risk of harm generated by the injurer’s failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of intervening causal factors is low.

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Notes

  1. 264 F. 334 (2d Cir. 1920).

  2. Although Grady, Kahan, and Marks assume courts have full information, in the sense of being able to determine the optimal standard or level, they do allow for courts to make mistakes in determining whether the injurer complied with the standard.

  3. If there is a risk of judicial error in applying the negligence test, then actors may take too much care in the full information model if courts do not apply the negligence test accurately; but if courts apply the test correctly, care incentives will be optimal. For a recent survey, see Grady (2013). To clarify the Grady–Kahan analysis, it may be useful to consider an example from Kahan’s article. Suppose a cricket ball is hit over a fence whose height was set unreasonably low, and injures a person, who then sues the owner of the cricket grounds. If the ball would have sailed over a fence set at a reasonable height, then a court would find against the plaintiff on causation grounds. However, it is easy to see in this example how error in application of the negligence test might arise. For example, one source of error is the difficulty in determining precisely whether in fact the cricket ball would have cleared a fence set at reasonable height.

  4. On the ex post nature of causation analysis, see also Wright (1985), Landes and Posner (1987).

  5. 826 F.2d 1554 (7th Cir. 1987).

  6. Hylton and Lin (2013).

  7. To be precise, we find that the optimal care outcome is possible irrespective of the assumed value of the productivity of care.

  8. One can view the full information model as a special case of the limited information model. An intermediate case, which we do not consider here, would have the court knowing the distribution of the intervention probability for only one of two intervening factors. The approach used in this paper for measuring distortion from optimal care could be applied to intermediate versions.

  9. Unless the barge owner voluntarily reveals the expected intervention probabilities, the court has no way of determining them. And from the court’s perspective any testimony on these probabilities would be regarded as conjectural and speculative, since it cannot be tested and verified. The observed intervention probabilities, however, are verifiable and therefore acceptable as a basis for determining negligence. Courts are required to use verifiable rather than speculative or conjectural evidence. This is a fundamental rule in many provisions of state and federal evidence law, and in civil jury instructions. See e.g., Vermont’s general jury instructions, at http://www.vtbar.org/UserFiles/Files/WebPages/Attorney%20Resources/juryinstructions/civiljuryinstructions/generaljury.htm.

  10. 131 N.W.2d 216 (Minn. 1964).

  11. 138 F.2d 14 (D.C. Cir. 1943).

  12. 294 P. 303 (Utah 1930).

  13. On the diversion effect of precaution against theft, see Baumann and Friehe (2013).

  14. The notion that negligence is determined ex post, using information revealed by the accident, is noted in Calabresi (1975) and assumed in the early formalization of Landes and Posner (1983). The ex ante versus ex post problem is discussed briefly in Landes and Posner (1987, at 235), though informally and only in response to criticisms of their work.

  15. Consider a few examples. In Gyerman v. United States Lines, 7 Cal. 3d 488, 498 P.2d 1043, 102 Cal. Rptr. 795 (1972), the defendant charged the plaintiff with contributory negligence for failing to inform his supervisor of a dangerous condition in the workplace. The evidence suggested that the accident probably would have happened even if the plaintiff had informed the supervisor. The court concluded that the defendant failed to show that the plaintiff’s negligence was a substantial factor causing the injury. In Rouleau v. Butler, 152 Atl. 916 (N.H. 1931), involving an accident between the defendant’s truck and the plaintiff, the defendant failed to signal his turn, but the plaintiff’s driver was not looking for the signal over most of the time in which it might have made a difference. In Weeks v. McNulty, 48 S.W. 809 (Tenn. 1898), the court found that a hotel was negligent for failing to install a fire escape, but there was insufficient evidence to indicate that the plaintiff’s decedent would have used a fire escape.

  16. Under a proportional damages measure (r  w)L/r, this distortion measure simplifies to a term proportional to E(s (1  G(E(s))), which is equal to zero for a symmetric distribution. However, for non-symmetric G, the distortion problem remains. Shavell (1985) proposes a proportional damages measure for causation cases. The proportional damages award also represents the setting where counterfactual damages are subtracted. Thus, subtracting counterfactual damages would not be sufficient to generate optimal care.

  17. We used \(\varphi = \left( { 2 / 3 { } - { 1/3}} \right)/\left( {2/3} \right) = .5\) for the solid black curve.

  18. We ran several simulations for different values of the productivity of care (φ), and found that the productivity value must be greater than or equal to .65 in order to observe an outcome in which care is optimal (D = 0).

  19. 126 S.W. 146 (Ky. 1910).

  20. More generally, we can distinguish three types of causation case. In the first, courts have full information, as in the case of car driven at a negligently fast speed, and the counterfactual events can be calculated easily and with accuracy. In the second, the court can accurately determine optimal care, but cannot determine easily determine whether the defendant complied with it—as, for example, in the cricket hypothetical of Kahan (1989). The third scenario, which is the focus here, is one of Knightian uncertainty.

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Correspondence to Keith N. Hylton.

Appendix

Appendix

Definition 1

The random variable X is said to have a Beta type I distribution with parameters \(\left( {a,b} \right), \, a > 0,b > 0\) denoted as \(X\sim B^{I} \left( {a,b} \right),\) if its p.d.f. is given by

$$\left\{ {B\left( {a,b} \right)} \right\}^{ - 1} x^{a - 1} \left( {1 - x} \right)^{b - 1} , \, 0 < x < 1,$$

where, \(B\left( {a,b} \right)\) is the Beta function given by

$$B\left( {a,b} \right) =\Gamma \left( a \right)\Gamma \left( b \right)\left\{ {\Gamma \left( {a + b} \right)} \right\}^{ - 1}$$

and the gamma function \(\Gamma \left( n \right) = \left( {n - 1} \right)!.\)

Definition 2

The random variable X is said to have a hypergeometric function type I distribution, denoted by \(X\sim H^{I} \left( {\nu ,\alpha ,\beta ,\gamma } \right),\) if its p.d.f. is given by

$$\frac{{\Gamma \left( {\gamma + \nu - \alpha } \right)\Gamma \left( {\gamma + \nu - \beta } \right)}}{{\Gamma \left( \gamma \right)\Gamma \left( \nu \right)\Gamma \left( {\gamma + \nu - \alpha - \beta } \right)}}x^{\nu - 1} \left( {1 - x} \right)^{\gamma - 1} {}_{2}F_{1} \left( {\alpha ,\beta ;\gamma ;1 - x} \right), \, 0 < x < 1,$$

where, \({}_{2}F_{1} \left( {a,b;c;z} \right) = 1 + \frac{ab}{1!c}z + \frac{{a\left( {a + 1} \right)b\left( {b + 1} \right)}}{{2!c\left( {c + 1} \right)}}z^{2} + \cdots = \sum\limits_{n = 0}^{\infty } {\frac{{\left( a \right)_{n} \left( b \right)_{n} }}{{\left( c \right)_{n} }}\frac{{z^{n} }}{n!},}\)

$$\gamma + \nu - \alpha - \beta > 0{\text{ and }}\nu > 0.$$

Definition 3

Let \(X_{1}\) and \(X_{2}\) be independent, \(X_{i} \sim B^{I} \left( {a_{i} ,b_{i} } \right), \, i = 1,2.\) Then, \(X_{1} X_{2} \sim H^{I} \left( {a_{1} ,b_{2} ,a_{1} + b_{1} - a_{2} ,b_{1} + b_{2} } \right).\)

See Zarrazola and Nagar (2009).

  1. 1.

    Single Signal Case (Beta Distribution)

$$\begin{aligned} E\left( s \right) & = \frac{a}{a + b} \\ G\left( {E\left( s \right)} \right) & = \int_{0}^{E\left( s \right)} {\frac{1}{{B\left( {a,b} \right)}}x^{a - 1} \left( {1 - x} \right)^{b - 1} dx} \\ \end{aligned}$$

To compute the value, we used “betacdf” in Matlab.

$$D = \left( {\frac{r - w}{r}} \right) - \frac{{\left( {1 - G\left( {E\left( s \right)} \right)} \right)}}{E\left( s \right)}$$

where \(r,w\) are given.

  1. 2.

    Two Signal Case (Beta Distribution)

    $$E\left( s \right) = \frac{a}{a + b}, \, E\left( q \right) = \frac{c}{c + d}$$

Based on the Definition 3 above, the product of independent Beta variables follows \(X_{1} X_{2} \sim H^{I} \left( {a,d,a + b - c,b + d} \right).\)

$$H\left( {E\left( s \right)E\left( q \right)} \right) = \int_{0}^{E\left( s \right)E\left( q \right)} {\frac{{\Gamma \left( {b + a} \right)\Gamma \left( {d + c} \right)}}{{\Gamma \left( {b + d} \right)\Gamma \left( a \right)\Gamma \left( c \right)}}x^{\nu - 1} \left( {1 - x} \right)^{\gamma - 1} {}_{2}F_{1} \left( {d,a + b - c;a;1 - x} \right)dx}$$

To compute the values for the simulation, we used “int” in Matlab and assuming n = 3 in \({}_{2}F_{1} \left( {a,b;c;1 - x} \right).\)

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Hylton, K.N., Lin, H. & Chu, HY. Negligence and two-sided causation. Eur J Law Econ 40, 393–411 (2015). https://doi.org/10.1007/s10657-015-9490-3

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