The Legal Duty to Incorporate Mistakes of the Victim

Abstract: In many jurisdictions, potential injurers are under a legal duty to incorporate possible mistakes of the potential victim. I distinguish three types of mistakes. First, victims might make mistakes because it is too costly to avoid them (e.g. little children in traffic). Second, the actual care level of an actor might sometimes be a bit above, and sometimes a bit below his average care level. Third, people might choose a lower care level than is optimal for them, even though they were able to take optimal care. This is the type of mistake I analyze in this paper. I argue on the basis of a game theoretical analysis that the duty to incorporate such mistakes might frustrate the preventive goal of tort law, because it decreases the care incentives provided to the victim, while simultaneously increasing the care incentives for the injurer. I provide examples of the legal duty to incorporate possible mistakes of the victim from different legal systems. I discuss the doctrine of the Last Clear Chance, as well as Donald Wittmans idea of Marginal Cost Liability. In cases where this idea is not feasible, I argue that the defense of comparative negligence might be a good alternative.

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