Successive Joint Torts: Conditions for Efficiency

This paper is concerned with the derivation of conditions for efficiency for liability rules for successive joint torts. In a successive joint tort, in the first instance the victim suffers harm on account of interaction with a tortfeasor, which subsequently is aggravated because of interaction with another tortfeasor. There can of course be no aggravation if there is no accident in the first instance. A liability rule for successive joint torts is a rule that determines (i) in case of first accident, the liability shares of the victim and the first injurer on the basis of the extents of negligence of the victim and the first injurer; and (ii) in case of second accident, the liability shares of the victim and the two injurers on the basis of the extents of negligence of the victim and the two injurers. It is shown in the paper that a liability rule for successive joint torts is efficient if the following condition is satisfied: if one of the victim and the first injurer is negligent and the other nonnegligent, then the entire accident loss resulting from interaction between the victim and the first injurer is to be borne by the negligent individual; and if one of the victim and the two injurers is negligent then no nonnegligent individual is to bear any part of the accident loss resulting from interaction between the victim and the second injurer. This condition has been termed in the paper as negligence liability for successive joint torts (NL-SJT). A subclass of the class of all liability rules for successive joint torts is that of simple liability rules for successive joint torts. A simple liability rule for successive joint torts apportions the accident losses solely on the basis of negligence or otherwise of individuals; the extents of negligence are not taken into account. It turns out that a simple liability rule for successive joint torts is efficient if and only if it satisfies NL-SJT. Whether NL-SJT is necessary for efficiency of any liability rule for successive joint torts remains an open question.