ABSTRACT
Data technology is increasingly deployed to assign safety scores to people and products. Could these scores be used by tort law to apportion liability for accidents? Instead of basing tort liability on negligence – on the level of care leading to the specific accident – ‘safety score liability’ would impose liability commensurate with a party’s habitual propensity to behave unsafely. This article describes how safety score liability would work, the incentives it would create, and the principles limiting its adoption. The article suggests that the precision of AI tools generating such scores – scores that have already reshaped other channels of safety regulation in society – offers new and thought-provoking opportunity for tort law. Safety score liability is rooted in a new and intriguing foundation for the notion of fault in tort law, providing surprisingly strong incentives for care, and managing the post-accident compensatory goals of tort law in a simple, low-cost manner.
Ben-Shahar, Omri, Safety Score Liability (February 2, 2025).
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