Class 21

               At common law, a negligent plaintiff could almost never recover. This was because of a rule known as contributory negligence. Under the contributory negligence rule, a plaintiff’s negligence acts as a complete bar to her recovery, even as against a negligent defendant. Contributory negligence always had its fair share of critics, and courts began to create exceptions to its general rule. One example was “last clear chance” doctrine: “When an accident happens through the combined negligence of two persons, he alone is liable to the other who had the last opportunity of avoiding the accident by reasonable care.” John Salmond, Law of Torts 480 (8th ed. 1934).

            The problems with contributory negligence explained the rise, in most states, of comparative negligence. There are two broad categories of comparative negligence regime. In “pure comparative negligence” states, liability is apportioned based entirely on fault. In modified jurisdictions, liability is apportioned based on fault unless or until the plaintiff’s fault is equal to or greater than that of other parties.

            This Section looks at comparative fault from a number of angles: its creation, application, and limits. How do we measure relative fault? Which factors should be paramount? Should the acts of nonparties be taken into account? Are some acts so different—and so much worse—that they cannot be compared? Has comparative negligence solved the problems many associated with contributory negligence? Or has the new way created problems of its own?