27 Pages Posted: 17 Sep 2006 Last revised: 20 Oct 2007
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.
Suggested Citation: Suggested Citation
Edelman, Paul H., What are We Comparing in Comparative Negligence?. Washington University Law Review, Vol. 85, 2007; Vanderbilt Law and Economics Research Paper No. 06-20. Available at SSRN: https://ssrn.com/abstract=929562 or http://dx.doi.org/10.2139/ssrn.929562