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The Fracturing of the Common Law: Loss Allocation in the Comparative Negligence Era


The Fracturing of the Common Law: Loss Allocation in the Comparative Negligence Era


Until recently, negligence doctrine developed largely through the evolutionary process of case law. Successive court opinions refined basic principles such as duty, breach, and causation, and affirmative defenses such as assumption of the risk and contributory negligence. Throughout this formative era, there was never any doubt that legislatures had the power to change such common law principles. Indeed, dramatic changes were made by statute in certain areas, such as workers’ compensation and wrongful death. But these were exceptions; for the most part, negligence law was common law.

In the last few decades, however, legislatures have gotten heavily into the business of restructuring the common law of torts. A prime example, of course, is comparative negligence, which has been adopted by statute in many jurisdictions. Many states have also enacted statutes placing caps on noneconomic damages, creating screening panels for medical malpractice cases, and limiting the scope of the collateral source rule.

Legislatures have been especially tempted to tinker with two traditional doctrines governing the allocation of negligence damages: joint and several liability and contribution. Recent statutes have fractured these fairly straightforward doctrines into a profusion of idiosyncratic approaches, many applicable only in a single state. These legislative changes to the principles allocating damages among tortfeasors illustrate a movement, found in many areas of the law, from general principles that work well in the broad run of cases (but may operate unfairly in some), to more precise, detailed rules that may be more “fair” but also introduce administrative complexities.

This chapter illustrates some of the changes legislatures have made to basic doctrines governing liability of multiple tortfeasors. It is not intended to make you an expert in the details of any state’s doctrine, but rather as a case study of the extent to which legislatures have fractured previously monolithic common law principles in the search for greater equity.


As earlier chapters explain, before comparative negligence the defendants’ responsibility for damages was determined by principles of joint and several liability and contribution. Each tortfeasor was fully liable for the plaintiff’s damages. A tortfeasor who paid the plaintiff was usually entitled to collect “pro rata” contribution from the other tortfeasors. That is, the tortfeasors shared the damages equally; if there were two tortfeasors, the one who paid would recover half in contribution from the other, if there were six, each paid a sixth, and so forth.

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