Friday, November 10, 2006
Comparative fault plays a critical role in some mass torts, both as a liability-reducing device and as an obstacle to aggregation. Vanderbilt mathematician and law professor Paul Edelman has posted a new paper on SSRN -- On Apportionment in Comparative Negligence -- analyzing precisely what it means to apportion fault in various types of tort cases. Here's the abstract:
The vast majority of jurisdictions in the United States have moved to regime of comparative negligence in tort cases. In contrast with contributory negligence, where a showing of fault on the part of the plaintiff acts as a complete bar to recovery, in comparative negligence the jury apportions fault among the parties and the damages are assessed in proportion to the fault assigned to the defendants.
What has heretofore gone unexamined is what exactly it means to apportion negligence. In this paper I will show that there are at least two different methods that one may apply, and the different ways lead to radically different outcomes. What I demonstrate, building on traditional models from law and economics, is that the different methods of apportionment are appropriate in different contexts, depending on the nature of the tort.
To aid in my analysis I introduce three pairs of ideas, all of which are new. I classify negligence torts as being commensurable or incommensurable, based on the nature of the care that needs to be taken by the defendant and plaintiff. I propose two different methods of apportionment, absolute percentages and relative percentages. Finally I discuss two different ways that damages can be related to choice of care: additive care and multiplicative care. These three pairs of ideas are interrelated and together point to how juries should be instructed in a comparative negligence cases.