fault except (1) P mental deficiencies are taken into account b/c people have

different duties to others than they do themselves and (2) kids are sometimes
forgiven

Shift to comparative negligence (which means the same thing as

comparative fault).

by statute or judicial adoption

When adopted by judges, accompanied by an institutional competence

rule (e.g. judges have the authority to do this - judges made the rule so
new judges can shift the rule to reflect contemporary thought)

Reasoning

Apportionment more fair then all or nothing

-Shift to comparative negligence has taken place internationally - joins the

club

-existence of ameliorative doctrines proves the problem with contributory

negligence

-comparatiev negliegnce equates liability with fault.

What does CF compare

fault or causation?

Learned Hand B<PL to each?

Posner compare cots to P of avoiding harm with costs to D of avoiding harm

(essentially B<PL)

Pure CF

1 p suffers 100k injury and is 50 percent at fault. Recovery? Yes. 50k.

2 p suffers 100k injury and is 90% at fault. Recovery? Yes. 10k.

Modified CF (on exam will give a statute and ask if its a mod 50 or mod 49)

Ps contributory negligence bars his recovery if it is *greater* than that of the

defendant

In mod 50 plaintiff recovers if the p is 50% or less responsible (most

commonly adopted when adopted by courts)

In mod 49 plaintiff recovers if they are less negligent than the d; here, if
p is equally or greater negligent then it goes away.

CF regimes tend to get rid of a lot of the doctrines (e.g. wilful and wanton, last
clear change).
CN and multiple tortfeasors

Do you compare negligence of P to D1 + D2, or to them separately?

Hypo

P is 40% at fault. D1 is 30% and D2 is 30%. Recovery in a mod 49?

Phantom Tortfeasor

D1 is speeding through a stopsign and hits Ps car (which was slightly over
into the other lane) while D2 is behind plaintiff and hits plaintiff. D2 runs off
and is never seen again.

Who bears the risk of uncollectability from the phantom tortfeasor?

Note phantom nature of phantom tortfeasor doesnt affect allocation

effect for purposes of mod 50 or mod 49 (for example, in a mod 49, if P is
30, D1 is 30, and phantom D2 is 40, then P still recovers despite equal
fault)

Comparative Fault and Damages

Seems to take away need for joint and several liability many abolish J+S
liability when they go to CF/CN

Typically yes asks p negligence v total d negligence.

Others keep it b/c they dont want to put the burden on the plaintiff.

Alami v Volkswagen