All right, legal eagles, you ready for this?
We're going deep on comparative negligence today.
Yeah, comparative negligence. A good one.
You know this is going to be on your torts exam, so we better
get it right. Absolutely, yeah.
For law students especially, you got to know the stuff inside and
out. You know, it seems kind of
simple on the surface, but yeah. But it can get really twisty.
So let's, like, start with the basics, OK?
We all know negligence, right? Yeah, you got to prove somebody
didn't act reasonably. Breach their duty of care, yeah.
And caused harm, Right? Right.
So like what happens when the plaintiff, you know, the person
suing? Yeah, they're not totally
innocent. That's where we get into
comparative negligence. It's not always black and white.
Right. Like in real life accidents,
almost never just one person's fault, right?
Exactly. I think it used to be different
though, right? Didn't we used to have
contributory negligence? Yes, much harsher.
Think back to the old case Butterfield V Forester I.
Remember that one vaguely? The plaintiff was injured riding
his horse. He ran into something, the
defendant left in the road OK, but he was riding too fast,
couldn't recover any damages. So even if he was like 1% at
fault. Didn't matter, total bar to
recovery. That's rough, No wonder they
changed it. Right.
Thankfully in the 20th century things started moving toward a
fairer system. OK, Wisconsin was 1st 1931.
Wow, Wisconsin leading the way. They got rid of contributory
negligence and said let's try this comparative negligence
thing. Much fairer.
Yes. Makes sense, like accidents are
rarely just one person's fault. Yeah, exactly.
But it wasn't just about, you know, being nice, right?
It goes deeper. There was some like legal ideas
behind. It we have philosophical even.
OK, well, you're the expert here.
Lay it on us. OK, so we have these fundamental
principles of tort law, like corrective justice.
Corrective justice and. Basically saying the law should
right the wrong make the person who caused the harm responsible
for fixing it. But comparative negligence
recognizes both sides can contribute.
So it's shared responsibility. Exactly, got to divide up the
liability. Make the punishment fit the
crime, as they say. Exactly.
But then there's this other idea, economic efficiency.
Oh, that's a good one. Yeah, if everyone's held
accountable even a little bit, people are going to be more
careful. Makes sense.
Like, you know, you might have to pay up, so you're going to
think twice before doing something risky.
Right. But wait a minute, I learned
about this in torts. Isn't there like two different
types of comparative negligence? You're right, it's not all the
same. We got pure and modified I
think. Yes, that's crucial to remember.
Those are the two main types. OK, we'll break it down for us.
Let's start with pure. OK, so pure comparative
negligence, says the plaintiff can get damages no matter how
much they were at. Fault.
So even if they were like, I don't know, 90% responsible.
They could still get 10% from the defendant.
Wow, so even if you messed up pretty bad you can still get
something? Yeah, some states really like
that idea, proportional recovery.
Like which? Which ones?
California, New York, They're big on pure comparative
negligence. OK, There's a really important
case. Levy Yellow, Capco.
Oh. Yeah, I remember reading that.
One, this was big 1975 total turning point in California.
Go ahead. Before this, California was all
about contributory negligence. Oh, right, so no recovery if you
were even a little bit at fault. Yeah, but this case changed
everything. Shifted the focus to dividing up
the fault. OK, big win for fairness then,
right? So what about modified?
What's the deal with that one? It's a bit more well modified,
OK. They say there's a limit how
much fault the plaintiff can have.
So if you're too much at fault, you get nothing.
Exactly makes sense. Yeah.
So what's the limit? How do they decide?
Two main ways, 50% bar rule and 51% bar rule.
OK, that's a lot of rules. Yeah, 50% bar rule.
Well, that's pretty straightforward.
Plaintiffs 50% or more at fault, no recovery.
OK, Texas, Georgia, they like that rule.
Good. What about the 51 percent?
Very similar, but the plaintiff can be 50% at fault and still
recover, but 51 percent or more they get nothing.
So you got to be less at fault than the defendant, basically.
Yeah. Man, that's a lot to remember.
It is. But OK, let's say we know which
rule applies. How do they actually decide how
much each person is at fault? Yeah.
I mean, is it just like a guessing game?
Well, it's not that simple. OK, good.
Because that wouldn't be very fair.
No, it's a whole process all. Right.
So walk us through it. What's the first step?
Well, first we got to figure out if both the plaintiff and the
defendant were actually negligent.
Right, back to the basics. Duty, breach, causation, all
that. Exactly.
But then how do we decide how negligent?
I mean, is it like 20 percent, 80%?
How do they figure that out? That's the tricky part.
OK, help us out here. It's not just what happened,
it's what a reasonable person would have done.
Oh right, the reasonable person standard.
Oh, he's got to remember that. OK, so the court will look at
everything? What do you mean by everything?
Witness testimony, expert opinions, police reports, OK,
sometimes even accident reconstruction.
All kinds of evidence. To get the full picture right.
So they're like detectives piercing the other the.
Clues. Exactly.
And remember always asking, would a reasonable person have
acted this way? Yeah.
Like would a reasonable person speed?
Would they text and drive that kind of thing?
That's what the court has to decide.
OK, so they've looked at the evidence.
They've thought about the reasonable person.
Yeah. Now how do they go from that to
a percentage? Do they just like pick a number?
It's not totally random, but there's definitely some
judgement involved. OK, judges, juries, they got to
weigh the evidence and make a call.
So there's room for debate. Absolutely.
That's where good lawyers come in, making a strong case for
their client. Right, you got to convince them
your client was less at fault. Exactly.
OK, so let's say they've got the percentages figured out.
What happens then? That's when we calculate the
damages. OK, so let's say, I don't know,
somebody gets awarded $100,000, right?
But they were 30% at fault. Then they only get 70,000.
OK, so their compensation gets reduced based on their fault.
Exactly. But hold on, We've been talking
like it's always just two people involved.
Yeah. What happens when you throw in
more people like multiple defendants?
Oh, that's when things are really interesting.
OK, well don't leave us hanging. We got to get to the bottom of
this. Multi party cases, That's a
whole other challenge all. Right, well, let's dive in.
What are some things we need to know about these multi party
situations? OK.
So one big idea is joint and several liability.
Joint and several liability, OK. This means the plaintiff could
get the entire judgement from any of the defendants.
What, even if that defendant was only a little bit at fault?
Yeah, even if they're only like 20% responsible.
So if one defendant is rich, the plaintiff could just go after
them for the whole thing. Exactly.
Wow, that's wild. So where does this joint and
several liability thing happen? New York, for example.
They use it with pure comparative negligence.
So in New York you could be partially at fault and still get
full damages from 1 defendant. Exactly.
That seems kind of, I don't know, risky for defendants.
It can be. But what if one of the
defendants can't pay? That's a tricky situation.
Yeah, what happened to? That the other defendants might
have to cover it, even if they were only a little bit at fault.
So one person's bad luck could become everyone else's problem.
Yeah, it can happen. OK, so that's joint and several
liability. What else makes these multi
party cases complicated? Well, what happens when somebody
involved in the accident isn't part of the lawsuit?
Like they just took off. Yeah, hit and run.
Or sometimes you just can't figure out who it was.
OK. Yeah, that makes things tough.
Right. How do you allocate fault when
you're missing a piece of the puzzle?
Like a mystery novel or. Something right?
The courts have to figure out what to do.
They don't want to punish the plaintiff or the other
defendants unfairly, right? But they also have to account
for the fact that someone else might be partly responsible.
So they got to get creative. Exactly.
Man, Multi party cases sound like a real headache.
They can be. All right, so we've tackled the
multi party mayhem. Are there any other frontiers of
comparative negligence we should know about?
I feel like this is popping up everywhere these days.
You're right, it's a concept that keeps evolving.
OK, we'll spill the tea. What else is going on with
comparative negligence? It's making waves in product
liability cases. Product liability?
Wait, isn't that about holding companies responsible for bad
products? Yeah, but it used to be all
about strict liability. Right, like the company's always
responsible no matter what. Exactly.
But now courts are starting to recognize that sometimes the
plaintiff's negligence can contribute to the harm.
So like if you use a product wrong, you're partially to
blame. Yeah, the company still has to
make safe products, but if the plaintiff misuses it, their
damages might get reduced. OK.
So it's not just about the product being defective, it's
about how it was used too, right?
Any examples? Yeah, there was a case with the
ladder, OK. It collapsed.
The plaintiff was injured. But the ladder was defective,
right? Yeah, but the plaintiff hadn't
locked the safety latches. Oh, so they didn't use it
properly? Exactly.
So the court said, OK, the company was negligent, but so
was the plaintiff. And they divided up the fault.
Yeah, just like we talked about. Interesting.
So even in product liability, it's not always black and white.
It rarely is. OK, now I got to ask.
Go ahead. Is there any limit to this
comparative negligence stuff? Like can you use it with
intentional torts? That's a great question and it's
causing a lot of debate right now.
OK, I'm intrigued. So traditionally intentional
torts like assault or battery, they were totally separate from
negligence. Right, because with those you're
intentionally trying to hurt someone.
Exactly. Negligence is about being
careless, not intentional. Right?
But as always, there are Gray areas.
OK, I'm listening. What about those cases where you
have a mix of intentional and negligent?
What do you mean? Well, like what if somebody
provokes someone else to attack them and then sues for their
injuries? So they were kind of asking for
it. In a way, yeah.
Some courts say absolutely not. No comparative negligence for
intentional torts. Makes sense, you shouldn't get a
discount just because the victim was kind of annoying.
Right got to hold people accountable for intentional
harm, but other courts are more open to looking at the
plaintiff's actions really. Even in those situations.
Yeah, especially if those actions directly led to the
harm. So like maybe the provocation
was really bad, so the court takes that into account.
That's the idea. Wow, so even with intentional
torts there's no easy answer? Nope.
Sounds like a real legal puzzle. It is.
All right, so we've covered a lot of ground here.
We have. From history to multi party
cases to product liability, even intentional torts.
Lots to think about. I think we need to see how all
this plays out in a real case, you know, see how it works in
practice. Absolutely.
A good case study always helps. If you have one in mind.
I do. How about Guptford V Filler?
A case with a name I can actually remember.
This one's a good one, pretty recent too.
OK, sell me on it. What happened in Guptford V
Filler? It's a classic driver and a
cyclist, both approaching an intersection.
OK, I'm picturing it. Driver's got the green light.
Cyclist is heading towards a red uh.
Oh, sounds like trouble. You guessed it, cyclist runs the
red light. Classic cyclist move.
But here's the twist. The driver was distracted
looking at their phone. Oh no, texting and driving.
Yep, so we got a distracted driver and a cyclist who doesn't
stop for the red. Talk about shared
responsibility. And of course they collide.
Cyclist is injured pretty badly. Oof, sounds messy.
It was Cyclist sued the driver. So this is where comparative
negligence comes in, right? Exactly.
Court had to decide who was more at fault.
That's right. Distracted driving versus
running a red light. Tough call.
Yeah, no kidding. So what happened?
The court looked at everything, considered all the evidence,
decided they were both negligent.
Not surprising. But they said the driver was
more at fault. Even though the cyclist ran the
red light, Yes. 70% fault for the driver, 30% for the cyclist.
Wow, so the distracted driving was worse than running the red
light? In this case, yeah, the court
really focused on that distraction as a major factor in
the accident. OK, so now we've got the fault
divided up right? How does that affect what the
cyclist gets? Well, the cyclist got damages
for their injuries, but they were reduced by 30%.
Because of their own fault. Exactly.
This case is a good reminder that even if you're injured,
your own actions can still affect what you get.
Absolutely. And those percentages?
They really matter. They can make all the
difference. All right, we've covered so much
ground today. It's.
Been a good deep dive. History.
Different types of comparative negligence.
Multi party cases. Even product liability and
intentional torts. But before we wrap up, I think
we should go back to go Ford V Filler.
Yeah, I want to see how this case would have played out under
those different comparative negligence rules.
Yeah, let's get hypothetical. Let's see how those different
rules could have changed everything.
All right, I'm game. Let's do it.
All right, so back to go. Ford V Filler, our distracted
driver and our red light running cyclist.
Yeah, a classic comparative negligence situation.
So let's pretend for a minute, what if this happened in a state
with that 50% bar rule? OK, so remember 50% or more at
fault plaintiff gets nothing right.
In this case, cyclist was 30% at fault.
So they're good, right? Still get some damages.
Exactly. They can still recover, just
reduced by that 30%. OK, but what if, just for fun,
the court had said the cyclist was 40% at fault?
Oh, that's getting close to the line.
Yeah. Would that change things?
Absolutely. That extra 10% would make all
the difference, really. Yep, they'd be over that 50%
threshold. No recovery at all.
Nope, even though the driver was still more at fault.
Wow, talk about a tough break. It shows how important those
percentages are. Yeah, few points here or there
can completely change the outcome.
Exactly. You got to know the rules in
your jurisdiction, OK? That's the 50% rule.
What about the 51% rule? Any difference there?
Not really same idea. So our cyclist is still in the
clear. Yeah, 30% is way below that 51%
cut off. OK, good for them, but let's
spice things up a bit, OK? I like where this is going.
What if there was another car involved, like someone
tailgating the distracted driver?
You know, making the whole situation worse.
Now we're talking. So now we've got multiple
defendants and a partially at fault plaintiff.
This is where it gets really interesting.
All right, walk me through it. How does comparative negligence
work with all these players? Well, now the court has to
figure out the fault of all three.
Detracted driver, Tailgater and the cyclist.
That's right, much more complicated puzzle.
OK. Let's say they figured out
distracted driver 50% at fault. Tailgater 20%.
Cyclist still at 30%. OK.
So now we got to think about joint and several liability.
Oh right, that thing where the plaintiff can go after anyone
for the full amount. Exactly.
So even though the cyclist messed up, they could still sue
either driver for everything. Yeah, that's how joint and
several liability works. Wow, that's a lot of power for
the plaintiff. It is, but remember the driver
who pays up can then try to get money from the the other driver.
Right to cover their share. Exactly this.
Is complicated stuff. Yeah, the more parties involved,
the more tangle the web. Right.
So we've done history types of comparative negligence, multi
party cases we've. Covered a lot of ground.
Even product liability and intentional torts.
It's a big topic. Now I want to bring it all
together. OK, time to test our knowledge.
I'm ready. Let's.
Do a little pop quiz. Oh I love a good pop.
Quiz Classic law school scenario.
Hit me with. It we've got a pedestrian not
paying attention, Jay walks into the street.
OK, I'm seeing it. But there's a speeding car
coming way over the line. Oh no, classic accident waiting
to. Happen.
Boom, collision. Who's at fault?
Well, that depends on what what jurisdiction we're in.
OK, so let's play it out. Different scenarios, different
rules. All right, let's break it down.
OK, so back to our Jay Walker and our speeder.
Yeah. Who's going to pay for those
medical bills? Let's.
Say we're in a pure comparative negligence state.
What happens? OK, so pure comparative
negligence. Remember, plaintiff can recover
no matter how much they're at fault.
Right, even if they were mostly to blame.
Exactly. So the court's going to look at
everything, figure out the percentages.
Jaywalking versus speeding? Tough one, yeah.
Let's say they decide jaywalker was 60% at fault, driver 40%.
OK, the. Pedestrian they can still
recover, but only 40% of their damages so even.
Though they were jaywalking, they still get something.
That's the idea of pure comparative negligence.
It's all about proportion. OK, that makes sense.
Now, what if we're in a state with a 50% bar rule?
OK, things are going to change a bit.
How so? Remember 50% or more at fault
the plaintiffs out of luck. Right.
No recovery. So if our jaywalker is 60% at
fault, they get nothing. Even though the driver was
speeding. Doesn't matter, they crossed
that 50% line. Wow, so the rule makes a big
difference. Huge difference.
OK. What about the 51% rule?
Same outcome, 60% is still over the limit.
So our Jay Walker is stuck with the medical bills either way.
Yep, tough lesson learned. This comparative negligence
stuff, it's really all about those percentages, huh?
It all comes down to those numbers.
All right, one last curveball. Hit me.
What if our speeding driver was? I don't know, running from the
cops. Now we're getting into
intentional tort territory. Right.
Fleeing the police. That's not just negligence
anymore. Exactly.
There's intent there. So how does comparative
negligence play into that? That's where the debate gets
really heated. OK, I'm all ears.
Some courts would say forget it, Comparative negligence is out
the window. Why?
Because it's intentional. Yeah, they'd say.
You can't compare intentional wrongdoing with negligence.
So the jaywalkers fault doesn't matter.
Nope. The focus is on holding the
driver accountable for that intentional act.
OK, what's the other side of the argument?
Well, some courts might say hold on, maybe we can still consider
the jaywalkers actions. Really.
Even in this situation. They might argue that the
jaywalkers negligence contributed to the harm.
So maybe they reduced the damages a bit.
It's possible, but it really depends on the specific facts
and the courts interpretation. Man, this is complicated.
It is, and that's why it's so fascinating.
I think we've given our listeners a lot to think about
today. We've covered a lot of ground.
We went from Butterfield V Forester all the way to
jaywalkers and fleeing drivers. It's a journey through the world
of comparative negligence. And the biggest take away, I
think. Shared responsibility.
Exactly. Accidents are rarely just one
person's fault. It's about figuring out
everyone's role and making sure the outcome is fair.
Alright, legal eagles, that's a wrap for today.
Hope you enjoyed the Deep. Dive.
Don't forget to study up on those comparative negligence
rules. They might just save you on that
torts exam. Until next time, stay sharp.