comparative negligence

comparative negligence

Comparative negligence replaces the old common law rule of contributory negligence. Comparative negligence has typically been introduced through statute, but has sometimes been introduced through judicial decision. McIntyre v Balentine.

Comparative negligence is typically no defense to an intentional tort claim, as courts will likely balance the magnitude as well as the relative amount of a defendant's wrongdoing. Conversely, a plaintiff who has suffered injury resulting from a "serious violation" of the law will probably not be able to recover. Manning v Brown. However, a defendant may be barred from defending his own negligence by referencing an injured plaintiff's previous negligence. [Fritts v McKinne]. (doctor barred from defending his own negligence during surgery by pointing out that plaintiff was injured by his own drunken driving)

The actual quality that factfinders are asked to allocate among parties is unclear: relative efficient causal force, magnitude of wrongdoing, or willfulness may all play a role.

A court may apportion comparative negligence liability depending upon the ex ante hypothetical bargain that two parties could have jointly made to cooperate in preventing accidents.

Types of comparative negligence regimes

Pure: a plaintiff can recover damages reduced in proportion to the percentage negligence attributed to him, so that ex. a plaintiff 90% responsible can still recover 10%

Mixed regimes set an arbitrary cutoff (typically 49% or 50%) percentage of fault attributed to plaintiff, above which plaintiff cannot recover

Economic considerations

Comparative negligence and contributory negligence regimes both attempt to place loss on the least cost avoider so that a negligent plaintiff will not be underdeterred if he can recover from a relatively more negligent defendant. Mixed regimes offer a symmetrical approach to the [preponderance of the evidence] rule, so that a plaintiff could not shift the loss to another person in a case where as defendant the loss could be shifted to himself. Contributory negligence regimes, on the other hand, may underdeter highly negligent defendants who cause accidents to slightly negligent plaintiffs, who themselves may eventually be held liable if they do cause accidents.