A Comparative Negligence Checklist to Avoid Future Unnecessary Litigation

Systems of comparative negligence, whereby the negligence of a plaintiff serves to reduce rather than to preclude tort recovery in negligence, have been adopted in thirty-nine states. The common law rule that contributory negligence is an absolute bar to recovery is still the law in Kentucky, although modified by the doctrine of last clear chance. Kentucky may soon join the trend toward comparative negligence, however. In the last legislative session, bills to adopt comparative negligence were introduced in both the House of Representatives and the Senate. A hearing on this subject was held by the Interim Judiciary and Civil Procedure Committee in March, 1983, and it is likely that a comparative negligence bill will again be introduced in the 1984 session of the General Assembly. Although most states have adopted comparative negligence statutorily, a few have done so by court decision. Kentucky courts will soon have the opportunity to adopt comparative negligence. The Kentucky Supreme Court has recently granted discretionary review in a case in which the only issue preserved for appeal is the denial of the plaintiff\u27s request for a comparative negligence instruction to the jury. This Article will examine several of the more important issues that should be addressed when comparative negligence is adopted. The issues to be discussed are: (1) how to apportion liability among multiple tortfeasors; (2) whether to retain the doctrine of last clear chance; (3) whether to permit setoff; and (4) what limits to put on jury instructions. Reasonable alternatives for each Issue will be set out, with possible statutory language for the adoption of each alternative. The relative advantages and disadvantages of each alternative will then be discussed in light of the current state of Kentucky tort law, the underlying rationale for adopting comparative negligence, and the type of comparative negligence system-pure or modified-adopted

A Comparative Negligence Checklist to Avoid Future Unnecessary Litigation

Systems of comparative negligence, whereby the negligence of a plaintiff serves to reduce rather than to preclude tort recovery in negligence, have been adopted in thirty-nine states. The common law rule that contributory negligence is an absolute bar to recover is still the law in Kentucky, although modified by the doctrine of “last clear chance.” Kentucky may soon join the trend toward comparative negligence, however. In the last legislative session, bills to adopt comparative negligence were introduced in both the House of Representatives and the Senate. A hearing on this subject was held by the Interim Judiciary and Civil Procedure Committee in March, 1983, and it is likely that a comparative negligence bill will again be introduced in the 1984 session of the General Assembly. Although most states have adopted comparative negligence statutorily, a few have done so by court decision. Kentucky courts will soon have the opportunity to adopt comparative negligence. The Kentucky Supreme Court has recently granted discretionary review in a case in which the only issue preserved for appeal is the denial of the plaintiff’s request for a comparative negligence instruction to the jury. This Article will not attempt to assess the relative merits of contributory and comparative negligence. Presumably, those issues will be aired thoroughly before the legislature and the courts. However, many states which have decided either legislatively or judicially to adopt comparative negligence have failed to resolve in advance a number of accompanying issues. This failure has resulted in extensive litigation to “fill the gaps.” Such litigation can be avoided by anticipating issues likely to arise when the doctrine is adopted, and resolving the issues by careful statutory drafting or considered judicial opinion. This Article will examine several of the more important issues that should be addressed when comparative negligence is adopted. The issues to be discussed are: (1) how to apportion liability among multiple tortfeasors; (2) whether to retain the doctrine of last clear chance; (3) whether to permit setoff; and (4) what limits to put on jury instructions. Reasonable alternatives for each issue will be set out, with possible statutory language for the adoption of each alternative. The relative advantages and disadvantages of each alternative will then be discussed in light of the current state of Kentucky tort law, the underlying rationale for the adopting comparative negligence, and the type of comparative negligence system—pure or modified—adopted

COMPARATIVE NEGLIGENCE

It is the purpose of this article to inquire, so far as possible, into the actual operation of the damage apportionment statutes, and to offer some conclusions as to the most desirable form of act for any legislature about to set forth upon these relatively uncharted seas

Comparative Negligence

This note will discuss briefly the policy considerations underlying a choice between comparative negligence and contributory negligence, and will attempt to predict the effects, both procedural and substantive, of the new Act on practice in Washington

Contributory Negligence, Comparative Negligence, and Stare Decisis in North Carolina

Part I of this article examines the contributory negligence doctrine and its history in the United States and North Carolina. Part II describes some of the criticism levelled at the contributory negligence doctrine. Part III examines the comparative negligence doctrine, including a-description of the types of comparative negligence systems, a history of the doctrine, and a look at the history of comparative negligence bills in the North Carolina General Assembly, concentrating on the several comparative negligence bills introduced in the 1980s and one of the principal arguments made against the bills. Part IV discusses North Carolina\u27s stare decisis jurisprudence and judicial deference to the legislative branch in relation to the common law of North Carolina and the contributory negligence doctrine

What Are We Comparing in Comparative Negligence?

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

Experience from Early Tort Reforms: Comparative Negligence Since 1974.

Insurance consumers in states that have adopted comparative negligence pay more for automobile liability insurance than do consumers in states that retain contributory negligence. Through the use of a transformed generalized least squares regression model, allowance is made for: no-fault, population density, state-specific price-level, and automobile safety/fatality differences. States with pure comparative have much higher costs than do states with modified comparative negligence; states with modified comparative have higher costs than those with contributory negligence. The influence of alternative liability rules on the cost of insurance is of public concern. In recent years many states have changed from contributory negligence to either pure or modified comparative negligence. This article examines the cost of automobile insurance under three liability rules. The authors conclude that states with either type of comparative negligence have higher automobile insurance costs