Technology and tort

This Article amends an important theory by Mark Grady on nondurable precaution (Grady, 1988). We present the first formal model on durable precaution, and add three insights to the literature. First, we argue that, under current tort doctrine, the interaction between nondurable precautions and mental costs create a self-sustaining expansion of tort law. Because the risk of liability creates additional interference effects, tort law perpetuates the expansion of awards. Second, we demonstrate that socially excessive suits are more likely to be filed in the event of nondurable technology. This is because a plaintiff does not consider the increase of interference costs as a private cost, when initiating a lawsuit. Third, while new harm-reducing technology likely increases accident rates, it also raises the ratio of trial costs to harm, thus leaving undetermined the overall effect of new technology on the rate of litigation