What are We Comparing in Comparative Negligence?
Paul H. Edelman
Vanderbilt University - Law School
Washington University Law Review, Vol. 85, 2007
Vanderbilt Law and Economics Research Paper No. 06-20
In tort cases, comparative negligence now is the dominant method for determining damages. Under that method, the jury apportions fault among the parties and assesses damages in proportion to the relative fault assessment. Comparative negligence contrasts with contributory negligence, where any fault attributed to the plaintiff bars recovery.
Although comparative negligence routinely governs in tort cases, its most basic feature remains uncertain: how to apportion fault. In this Article, I demonstrate that at least two different methods exist, and that these methods lead to radically different outcomes. I create a framework, building on a traditional model from law and economics, to determine when each applies. I argue that the applicable method varies with the nature of care and the relationship between care and expected damage. This framework will organize and reshape comparative negligence determination.
Number of Pages in PDF File: 27
Date posted: September 17, 2006 ; Last revised: October 20, 2007