Select Page

SUNY Buffalo Law School
Ewing, Charles Patrick

Professor Mensch

Strict Liability — as between two innocents, the one who causes injury, pays
– if injury occurs for whatever reason, and however unavoidable, the injurer must compensate victim for loss

Negligence — injurer is liable only for those accidents that he could have avoided at a lower cost than the expected accident cost

Contributory Negligence — if victim could have avoided the accident at a cost lower than expected accident cost and also lower than injurer’s cost of avoidance, injurer is not liable for victim’s loss


1.) Hand Formula: No liability unless — burden to prevent < (probability) * (injury)

strict liability – formula does not apply
contributory negligence – apply formula to victim

2.) Reverse Hand Formula: cost of accident is bore by injurer (strict liability) unless injuree could have avoided the injury for less the cost (contributory negligence)

3.) Pigou: negligence allows firms who cause harm to externalize costs of doing business on others by avoiding cost of doing business from their own expense
– strict liability should be applied

4.) Coase Theory:
A. Reciprocity — costs go in two directions, if one pays then protection affording the one harmed is as much a cost
– provides absolute protection from one side
– either way imposes cost on one or the other
B. Market Difference — in purely free market, it makes no difference where rights are assigned because the right will always end up in the hands where the rights are most valuable
C. Rule — can’t count on market (efficiency over rights)
– courts should assign the right to the party who would find it most valuable to purchase the right if were assigned to the other party and transaction costs were zero

–Problem with Coase Theory
– non-economic terms are not considered
– difficulty in determining who values rights more
– rights of property may be ignored

5.) Posner — whether strict liability or negligence, the level in investment in safety is the same
– unavoidable accidents — if B >> PL, pay off damages

6.) Calabresi — impose strict liability on one who can best calculate the cost and benefits with the best information
– should have strict liability, externalized costs should be internalized (against reciprocity)
– incentive: regime of strict liability will increase investment in safety researc

lose based on sound medical considerations
– not enough for patient after the fact
– duty to give reasonable disclosure

– Hurley v. Eddingfield — a physician is not obligated at all or on other terms to o offer assistance unless he chooses to take charge of a case
– freedom to act (do with yourself what you want to do irrespective of efficiencies)
[B is really small, P & L are large] – Hudson v. Craft — where it is a crime to inflict a particular invasion of an interest of personality upon a particular class of persons, irrespective of their assent and the policy of law is primarily to protect the interests of such a class of persons from their inability to appreciate the consequences of such an invasion and it is not solely to protect the interests of the public, the assent of such a person to such an invasion is not a consent thereto
– promoter of illegal boxing concession at carnival