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

An extensive theoretical literature on the effects of liability rules in accident law exists, but there has been little testing of these theoretical models. In this article, the author develops 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 into account 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. The author then tests the model using a data set of rear-end automobile accidents that were litigated in court, including some that involved alcohol use. In these cases, the care levels of the injurer and victim are measured in three categories for each driver: "very bad driving" means evidence was presented in court alleging that the driver was drinking or exceeded the speed limit by a large margin; "mediocre driving" means evidence was presented alleging a mild driving transgression; and "good driving" means no evidence of fault was presented. The author concludes that incentives to take care to avoid accidents are stronger under the contributory negligence rule than under the newer rule of comparative negligence. Also, the incentives set up by the comparative negligence rule for drivers to avoid accidents are weaker than is economically efficient. Thus, the widespread adoption of the comparative negligence rule has probably reduced incentives for careful driving and should be expected to contribute to rising accident costs.


  • English

Media Info

  • Media Type: Print
  • Features: Figures; References; Tables;
  • Pagination: pp 308-330
  • Serial:

Subject/Index Terms

Filing Info

  • Accession Number: 01010588
  • Record Type: Publication
  • Files: TRIS
  • Created Date: Nov 5 2005 6:46AM