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Sir Edward Coke, 1552 - 1634

Alternative Rules for Determining Tort Liability

Coke's Institutes of the Law, No. 2, Series Editors: Amanda J. Owens & Charles K. Rowley


Comparative Negligence

Comparative negligence is a means by which the burden for an accident is shared between the plaintiff and defendant. There are a number of different systems of comparative negligence. Under the pure comparative negligence system, a contributorily negligent plaintiff may recover even though his negligence was greater than the defendant's negligence. The damage award is reduced in proportion to the amount of negligence attributed to the plaintiff. There are two different variants on this theme. Firstly, in some systems the damages are divided equally despite varying degrees of fault. Secondly, damages may not be apportioned at all in situations where both the plaintiff and defendant are negligent. For example, if the plaintiff is more than 50% negligent, it is a complete bar to recovery, just like contributory negligence. A substantial number of states have comparative negligence statutes on their books.

The California courts introduced comparative negligence into California with a judicially creative decision in Li v. Yellow Cab Co., (1975). In this case a plaintiff made a left turn across three lanes of traffic and was hit by an oncoming vehicle. The defendant's vehicle was being driven over the speed limit at the time of the accident. The issue before the court was whether the doctrine of contributory negligence should continue to apply in California courts, and whether a system of comparative negligence should be incorporated instead. The court was uncomfortable with the "all or nothing" rule of contributory negligence. It favored the comparative negligence scheme where liability is assessed in proportion to fault, on the basis that if liability is fault-based, then the extent of the fault should govern the extent of liability. The court decided to apply "pure" comparative negligence principles because "partial" comparative negligence principles perpetuate the contributory negligence precepts.

The court had specious justifications for its break with common law precedent. The California courts had adopted contributory negligence into the law of the state as part of the general civil code in the nineteenth century. The court argued firstly that when contributory negligence was adopted into the Legislative scheme the Legislature did not intend specifically to perpetuate the doctrine of contributory negligence. Contributory negligence was incidental to the Legislative plan to announce and formulate existing common law principles and definitions for the purpose of establishing an orderly and concise legal system. Moreover, when this code was adopted it was with the knowledge that the common law is elastic, and principles would continue to evolve in judicial decisions. Therefore it was a natural progression for the courts now to introduce negligence principles from comparative legal systems. Secondly, on a practical level, jurors, uncomfortable with the outcome of contributory negligence, often compromised their verdicts and/or assessment of damages in order to arrive at an appropriate verdict. Thirdly, approximately half the states had passed statutes abrogating the all or nothing approach of contributory negligence in favor of some form of comparative negligence. The court used these arguments to justify a complete change in California negligence law.

The California judicial system continued their modification of the tort system in two more court cases. American Motorcycle Assn. v. Superior Court, (1978) concerned a teenage boy paralyzed by an accident in a cross-country motorcycle race for novices. The boy claimed that the race course was negligently constructed, while the counter-claim alleged negligence in the parents who consented to their son's participation in a dangerous sport. The court explained how the comparative negligence doctrine should be incorporated into the overall tort system, particularly addressing the application of the doctrine of equal indemnity, which allocates loss between multiple tortfeasors, and the application of partial indemnity allocating loss between concurrent tortfeasors and the comparative indemnity theory.

The second California case, Safeway Stores v. Nest-Kart, (1978), concerned the application of the comparative fault principle when apportioning liability between two tortfeasors, one of whom was liable on a strict liability basis, the other was liable on a negligence basis. The court held that liability should be apportioned between the two tortfeasors in conformity with the findings of fault rendered by the jury at trial. Fairness and good social policy dictated sharing responsibility and these considerations did not justify letting a manufacturer escape liability on a strict liability theory but finding the same manufacturer liable on a negligence theory. The dissent objected to infusing negligence theory into strict liability doctrine. The dissent argued that a manufacturer could dilute its responsibility by putting into issue the conduct of the other defendants, thereby undermining the doctrine of product liability.

Reference was made to the Florida case of Hoffman v. Jones, (1973) in the Li decision. This was another landmark case that made substantial changes in state tort law. In the Jones case the court was asked whether the contributory negligence rule could be replaced with the principles of comparative negligence. The court decided that the comparative negligence system, which equated fault and liability, was the most equitable system for tort law. The comparative negligence scheme allowed the jury to apportion the negligence of the plaintiff and the defendant. A plaintiff could not recover under comparative negligence theory if it was the sole cause of the accident or someone other than the defendant was the sole cause. The court abolished the last clear chance doctrine as it could not apply to comparative negligence.

To justify its decision, the Jones court wrote that the contributory negligence doctrine became prominent in the common law only after the Butterfield v. Forrester decision. Before 1809, and for some time after that date, contributory negligence was not a clear-cut rule. Most probably, the common law before 1809 employed maritime principles, apportioning damages between the plaintiff and defendant. The court argued that when common law is plain it must be observed. However, in the case of contributory negligence, grave doubt existed as to whether it was a true doctrine because it was not prominent until 1809. Therefore, the Florida court believed that it was justified in exercising broad discretion, bringing the tort law in line with present day social and economic customs, and modern perceptions of right and justice.

The Jones opinion continued to comment that one of the pressing social problems in Florida was automobile accidents, as they formed the bulk of tort cases. Society, the court continued, must be concerned about accident prevention and compensation of victims. The contributory negligence doctrine developed to protect the essential growth of industries, such as transportation. In modern economic times, social customs favor the individual over industry. Comparative negligence, with its apportionment of fault, is more consistent with fault-based liability, and is more realistic and better calculated to achieve justice. The Florida legislature had been unsuccessful in introducing legislation to enact comparative negligence, and so the court decided to achieve what the legislature had failed to do with this decision.

In a powerful dissent, it was argued that if a fundamental change was to be made in the law, the modification should be made by the legislature with legislative committees and public hearings, not by judicial fiat. The excursion into the field of legislative jurisdiction weakened the concept of the separation of power and the tripartite system of government.

In West Virginia, the Supreme Court of Appeals considered similar issues in Bradley v. Appalachian Power Co., (1972). Two cases, consolidated on appeal, asked the court to re-examine and ameliorate the common law doctrine of contributory negligence. In each case the plaintiff sought to avoid contributory negligence defenses by relying on the doctrine of comparative negligence. In response, the court introduced a "partial" system of comparative negligence. The system required that the defendant's negligence be the proximate cause of the accident and injuries. A plaintiff may recover so long as his negligence or fault does not equal or exceed the combined negligence of the other parties involved in the accident. The jury must assign the proportion of negligence between the parties, allocating the amount of the award and the percentage of fault.

The court's policy focus was on moderating the harshness of the contributory negligence rule to achieve a satisfactory balance in fault allocation. This "partial" comparative negligence doctrine achieved an intermediate position between the bar of contributory negligence and the total permissiveness of comparative negligence. Justice Miller believed that the introduction of partial negligence would not make a radical change to the tort system:

"we can see no benefit to be gained by the radical break from the common law's tort-fault methodology that the pure comparative negligence rule requires. There are basic inequities inherent in the pure comparative negligence rule and its resulting singular emphasis on the amount of damages and insurance coverage as the ultimate touchstone of the viability of instituting a suit." (pp. 884-885)

These decisions illustrate a new development in tort law. The courts have adopted a legislative role, introducing significant changes in the law without the checks and balances involved in the legislative process. The common law was not designed to achieve policy reforms. Its history is one of gradual change, reflective of a spontaneous order.

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