assigns the losses from these efficient accidents to the
injurer. (117)
deterrence if the
injurer's total gain exceeds the compensable
(29) He appreciated that it is not possible to identify culpable choices in all (or even many) cases of negligence, and were it otherwise, he would still need to explain why the moral outrage we experience in response to a case of negligence very typically takes as its object the
injurer's inadvertence to the riskiness of her conduct, rather than any of her prior choices that might be causally connected to the moment of another's injury.
A distinction is usually made between the case where only one party, the
injurer, can influence the accident risk--this is referred to as a unilateral accident situation--and the situation where both the
injurer and the victim can influence the accident risk; the latter is referred to as a bilateral accident situation.
That is, a relatively small number of potential
injurers (cheaper precaution-takers) are exposed to high frequencies per actor so that the application of the law concentrates upon a relatively limited number of economic actors.
The Economic Resilience of the
Injurer and the Fear of Its Collapse H.
With honest completion of these final dimensions, a renewed relationship between
injurer and injured becomes possible.
This Article claims that under the correct interpretation of the law, liability should be imposed on the
injurer in both the medical malpractice and products liability cases and, more generally, in any case when the
injurer was ex-ante negligent, regardless of whether his behavior is ex-post reasonable.
("[V]ictims are often in the best position to know when and how much they have been injured as well as the identity of
injurers.").
Although the foregoing considerations justify the imposition of punitive damages, courts regularly neglect them, focusing instead on the mental state of the
injurer. For example, courts tend to focus on whether a tortfeasor's actions were intentional or malicious (Polinsky and Shave11 1998, 898-99).
Real change begins to occur, however, when the
injurer engages in a process of self-confrontation that is akin to the spiritual discipline of self-examination (Buschart, 2011; Calhoun, 2005; Johnson, 2007; Watson, 1994) and which parallels the confrontations of others.
For example, if first-party insurers are the better regulators of a particular risk than liability insurers, then a no-liability rule could be desirable, even if
injurers are the more efficient risk avoiders.
