Evidentiary uncertainty and

Yonsei University
Comparative negligence
International Summer School (textbook, page 248)

• The prevailing liability standard is one of

Law and Economics comparative negligence for non-product-
Lecture 10 related torts.
• For product-related torts, strict liability is
the prevailing standard.

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Evidentiary uncertainty
• Suppose that, in a negligence case, it is not certain how
the court will evaluate the evidence developed at trial.
Thus, neither the plaintiff nor the defendant can be
certain whether the court will determine that their
precautionary behavior was sufficient to absolve one of
them of fault.
• The court may determine that the precaution of one of
the parties was insufficient, even though that party
thought that he or she had complied with the relevant
duty to take due care. Or the court may find one of the
parties nonnegligent when in fact the party was violating FIGURE 7.2 Evidentiary uncertainty smooths thediscontinuity at
the legal standard of care. the legal standard of care and induces extra precaution by the
potential injurer.
• We may call this condition “evidentiary uncertainty.

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• The effect of evidentiary uncertainty is to smooth the
discontinuity in expected liability at the (presumed) legal
standard that we developed in Chapter 6.
• Smoothing occurs because injurers’ expected costs are
a weighted average of their costs when liable and their
costs when not liable, with the weights given by the
probability that they will be found liable.
• The effect is indicated in Figure 7.2 by the sloping curve
that connects the expected-cost curve and
precautionary-cost line.
• Evidentiary uncertainty will cause overprecaution relative
to the efficient level of precaution. This result is true
under any form of the negligence rule.
• The overprecaution caused by evidentiary uncertainty is
less under comparative negligence than it is under any
other form of the negligence rule.
• The simple reason is that under comparative negligence,
when both parties are negligent, the losses are shared
between the two parties rather than being concentrated
on one party.

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