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The (Hidden) Risk of Opportunistic Precautions

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  • Ehud Guttel

Abstract

Under the conventional tort law paradigm, a tortfeasor behaves unreasonably when two conditions are met: the tortfeasor could have averted the harm by investing in cost-effective precautions and failed to do so, and other, more cost-effective precautions were not available to the victim. Torts scholarship has long argued that making such a tortfeasor responsible for the ensuing harm induces optimal care. This Article shows that by applying the conventional analysis, courts create incentives for opportunistic investments in prevention. In order to shift liability to others, parties might deliberately invest in precautions even where such investments are inefficient. The Article presents two possible solutions to the problem. By instituting a combination of (1) broader restitution rules and (2) an extended risk-utility standard, legislators and judges can reform tort law to discourage opportunistic precautions and maximize social welfare.

Suggested Citation

  • Ehud Guttel, 2007. "The (Hidden) Risk of Opportunistic Precautions," Discussion Paper Series dp471, The Federmann Center for the Study of Rationality, the Hebrew University, Jerusalem.
    • Handle: RePEc:huj:dispap:dp471
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    Cited by:

    1. Srivastava Astha & Srivastava Ankur, 2021. "Economic Analysis of Accident Law: A New Liability Rule that Induces Socially Optimal Behaviour in Case of Limited Information," Review of Law & Economics, De Gruyter, vol. 17(1), pages 119-131, March.

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