Re-examining Liability Rules When Injurers as Well as Victims Suffer Losses

In his recent article, “Liability Rules When Injurers as Well as Victims Suffer Losses,“’ Avon Leong examines the question whether the standard liability rules-pure negligence, negligence with contributory negligence, pure strict liability and strict liability with contributory negligence-can be used to induce efficient care-taking by individuals in those circumstances where both injurers’ and victims’ care-taking affects the probability of an accident and where both injurers and victims suffer losses. It is now a standard result that the three “negligence-inclusive” liability rules (pure negligence, negligence with contributory negligence and strict liability with contributory negligence) all can be used to induce efficient care-taking by both parties where the individuals are engaged in bilateralcare and unilateral-risk activities.2 In contrast, Leong found that where the accident results from a bilateral-care and bilateral-risk activity (in that it involves a risk of injury to both the victim and the injurer), none of the standard liability rules can be employed to induce efficient care-taking by both parties. Leong’s results, while important, depend on a somewhat unusual assumption about the nature of the tort system. Leong assumes that although victims can sue injurers for the losses the victims sustain, injurers cannot sue victims for the losses the injurers sustain.3 In the actual world of the tort system, however, when the activity in question is a bilateralrisk activity we no longer have clearly defined injurers and victims. Rather, each individual engaged in a bilateral-risk activity is simultaneously a potential tortfeasor and a potential tort victim. Should an accident occur between two individuals in which both of