Burdens of Proof in Establishing Negligence: A Comparative Law and Economics Analysis

Inherent in any judicial system is the need to allocate the burden of proof on one party. Within the realm of negligence torts, that burden is traditionally placed on the plaintiff, meaning that the plaintiff must bring forth sufficient evidence to establish negligence by the defendant. In effect, this is a legal presumption of non-negligence in favor of the defendant. In some jurisdictions for specific torts, defendants are, instead, presumed negligent, therefore requiring defendants to come forth with sufficient evidence to prove their due diligence. In this paper, we discuss the legal origins and effects of these differences in a comparative law and economics perspective. We explore the interesting interaction between evidence and substantive tort rules in the creation of care and activity level incentives and discuss the ideal scope of application of alternative legal presumptions under modern-age evidentiary technology.