The Uneasy Case of Multiple Injurers’ Liability

Abstract

When harm is caused by multiple injurers, damages are allocated among the responsible injurers in proportion to their relative responsibility for harm. This Article shows that a proportional allocation of liability between strictly-liable injurers distorts incentives to take precautions. The effects of this distortion depend on the nature of the injurers’ precautions. If precautions are complements, injurers compete for lower liability shares, which results in excessive care-taking. If precautions are substitutes, injurers are afflicted by moral hazard, which gives rise to insufficient care-taking. By illuminating injurers’ strategic incentives, this Article highlights the largely overlooked tension between equity and efficiency under a proportional allocation of liability.