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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.

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