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Introduction

    3. Shifting of burden:  Apart from tort law’s interest in promoting economic efficiency, this branch of law also has an interest in imposing the cost of accidents on those who can afford them. That is, where financial hardship must fall on someone, the courts generally attempt to place it on the party who can best bear it (usually because he is, or could easily have been, covered by insurance).

    a. Not dispositive:  The parties’ relative ability to bear the burden is not dispositive; a worker who dashes out into the street and is hit by a U.S. Mail Truck will usually not be able to recover very much from the U.S. (because of his “comparative negligence”), even though he is obviously far less able to bear financial burdens of his injury than would the U.S. government. But ability to bear the burden is certainly one important factor in courts’ decisions; this is seen most clearly in cases of “products liability,” in which manufacturers and other sellers of defective products are required to bear the cost of injuries caused by these products, regardless of negligence, on the theory that such costs should be treated as simply part of the “cost of doing business.” See infra, p. 347.

    4. Conflict:  Observe that the goal of “economic efficiency” and the goal of “shifting costs to those who can afford them” will often be at odds with each other. Consider the above hypothetical of the worker who dashes carelessly into the street and is hit by a U.S. mail truck. If we want to encourage “economic efficiency” – that is, if we want to give all parties the economic incentive to avoid activities whose economic costs outweigh their economic benefits – we would make sure that the worker cannot recover, because he is the one who had the best opportunity to change the outcome, by not dashing carelessly into the street. If, on the other hand, we want to make sure that costs are imposed on those who can best bear them, we will allow the dasher to recover from the U.S., which obviously has the deeper pocket. After an enormous expansion of liability from about the 1960s through ’80s (during which courts seemed to engage mostly in shifting costs to the deepest available pocket), there are signs post-1990 that courts are paying increasing attention to economic-efficiency issues. See, e.g., Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., infra, p. 337.

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