Comparative Negligence *
December 2, 1996
* forthcoming in The New Palgrave Dictionary of Economics and the Law.
** Department of Economics, University of Western Ontario, London, Ontario N6A
5C2, Canada. E-mail: firstname.lastname@example.org
Comparative Negligence. Comparative negligence is a form of negligence rule in
which damages in a tort action are apportioned on the basis of the relative fault of the
responsible parties. Comparative negligence is the prevailing doctrine for accident cases:
as of 1992, 44 states in the United States as well as Austria, Canada, France,
Germany, Japan, New Zealand, the Philippines, Poland, Portugal, Russia, Spain,
Switzerland, Turkey, and the United Kingdom have adopted it.
In an accident case, costs of the accident must fall upon
someone. When a court decides that a party should bear the costs of the accident, the
party is said to be liable for the loss. A variety of negligence rules create a legal standard
of behaviour in taking precaution against accidents and then impose liability on parties
who fail to comply. A party is called negligent if his precautionary care is below the legal
standard of care.
In a simple negligence rule, the injurer is liable for the accident only if he is
negligent. In the negligence rule with a defence of contributory negligence (contributory
negligence, hereafter), the injurer is liable only if he is negligent and the victim is not
negligent. Comparative negligence differs from contributory negligence only when both
parties are negligent. In particular, under comparative negligence each negligent party
bears a fraction of the accident losses.
For most of the past two centuries contributory negligence was the
dominant doctrine in tort cases. The defence of contributory negligence originated in
1809 with the famous case of Butterfield v. Forrester. The rule found ready
acceptance in later decisions.
The attack upon contributory negligence has been founded upon the obvious
injustice of a rule which visits the