25

Casting the Second Stone: Comparative Negligence

INTRODUCTION

Somewhere in the Bible lies the telling maxim: “Let he who is without sin cast the first stone.” A rich understanding of human experience lies behind this phrase; for few of us are so pure that we can forswear responsibility for life’s vicissitudes or piously condemn others without considering our own failings.

For many years, the common law refused to account for this basic truth in tort cases. The contributory negligence doctrine reflected the absolutist moral view that the plaintiff who was blameless was entitled to full vindication in a court of law, but that one who shared the taint of sin in any degree must be sent forth to languish in the wilderness. Today we are less pious and more pragmatic about accident causation. This more “modern” view is reflected in the widespread adoption of comparative negligence, which replaces the all-or-nothing approach of contributory negligence with a system that reduces a party’s damages to account for her fault.

I hesitate to call this a “modern” view, because there is nothing new about it, really. Comparative negligence was apparently known to those most practical of lawmakers, the Romans, and has prevailed widely in civil law countries since the nineteenth century.[1] American admiralty practice also adopted a rough form of comparative negligence: Under the “ equal division rule,” if two ships were at fault in a collision, the court divided the damages equally, regardless of their relative degrees of fault. Suppose, for example, that the Queen Mary collided with the Queen Elizabeth, and sustained $200,000 in damage. If both ships were partly at fault in causing the collision, the owners of the Queen Mary would recover $100,000. This was true even if the Queen Mary’s skipper was 1 percent at fault and the Queen Elizabeth’s was 99 percent to blame. This may seem like a crude system, but it was a substantial retreat from contributory negligence: Under contributory negligence, the Queen Mary’s owners would have recovered nothing at all.

Dissatisfaction with the all-or-nothing feature of contributory negligence also led several states to experiment with a slight/gross comparative negligence system. Under an early Nebraska statute, for example, a plaintiff whose negligence was “slight” compared to that of the defendant was allowed to recover, but her recovery was reduced “in proportion to the amount of contributory negligence attributable to the plaintiff.” Neb. Rev. Stat. §25-21,185. This provision changed the result in those cases in which contributory negligence operated most harshly: where the plaintiff was only minimally negligent. However, even under the slight/gross system, if the jury found that plaintiff’s negligence was more than “slight,” the traditional contributory negligence rule applied, and plaintiff lost entirely.[2]