V. Tort law
    D. Liability

    2. Victim fault

    Under a negligence rule, victim fault becomes an issue only if the defendant is negligent
    Otherwise, we have only an accident, not a tort, and the case is over

    a. Alternatives under the law

    Option 1: simple negligence

    Defendant negligence => automatic liability
    No follow-up consideration of victim behavior

    Butterfield v. Forrester, King's Bench, 11 East 60 (1809)

1. What are the facts of the case?
2. Had the defendant injurer been negligent?
3. So why not award the plaintiff damages?
4. Who had the last clear chance in this case, the injurer or the victim?

    illustrates Option 2: "contributory negligence"
    => after asking whether the defendant had been negligent and concluding that he had (if he had not, that would be the end of the case), ... ask whether the plaintiff had been negligent. If the answer was "yes," the plaintiff lost. (P173)
    from the case: "One person being in fault will not dispense with another's using ordinary care for himself."

    Not all victim negligence is contributory--the contributory negligence must not be superseded by the injurer's negligence:
    Davies v. Mann: rider had the last clear chance to avoid injury despite victim negligence in tying up the donkey
    Brit.Col. Electric Rail v. Loach: railway should have had the last clear chance despite victim negligence in driving onto the tracks

    Contributory negligence must be a proximate cause of the injury at the time the injury occurs

    Dobson v. Louisiana Power & Light Co., 567 So. 2d 569 (1990)

1. P: Going back to the initial lawsuit as originally tried, why did you file it?
2. D: Why do you think you shouldn't be held liable?
3. P: Did the decedent seem to be aware of the danger he was in?
4. D: Why do you still think you should not be liable?
5. D: Any other points you would like to raise regarding the initial trial?
6. P: Any final arguments?
7. Others: Is defendant liable?
8. P: Turning now to the appeal court, what ruling did it reach?

    As in Butterfield v. Forrester, the court acknowledges victim negligence: "Actual lack of knowledge by victim is not sufficient to find lack of victim fault: "Any person is required by law to recognize that his conduct involves a risk of causing harm to himself if a reasonable person would do so while exercising such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence and judgment as a reasonable person would have.... [Plaintiff's] failure to take precautions to avoid the risk of which he should have known amounted to negligence."

    illustrates Option 3: Comparative negligence: "We do not think that the unreasonableness of [defendant's] conduct was so great as to be double the fault of [plaintiff]. But we conclude that a palpable majority of the fault should be attributed to the [defendant] in order to achieve substantial justice in this case. Accordingly, we attribute 60% of the negligence herein to [defendant] and 40% to [plaintiff].

    b. Economic analysis of legal options

i = injurer     v = victim     efficient level of combined precautions:     Si* and Sv*     At S*: MBs = |dP/dS x L|         = MCsi = MCsv     efficiency => both sides must internalize L.

    Option 1: simple negligence: victim collects if Si < Si*
    Option 2: contributory negligence: victim collects if Si < Si* 
        and Sv > Sv*
    Option 3: comparative negligence: victim collects qi of loss, where
        qi = the injurer's share of combined negligence:
           = (Si* - Si) / [(Si* - Si) + (Sv* - Sv)]

    Conduct under alternative legal rules: see handout