REST 3d TORTS-AL s 7

Restatement (Third) of Torts: Apportionment Liab. s 7 (P.F.D. Rev., 1999)

Restatement of the Law Third

Torts: Apportionment of Liability

Proposed Final Draft (Revised) [FNa]

(March 22, 1999)

Topic 1. Basic Rules of Comparative Responsibility

Copyright (c) 1999 The American Law Institute

s 7. EFFECT OF PLAINTIFF'S NEGLIGENCE WHEN PLAINTIFF SUFFERS AN INDIVISIBLE INJURY

TEXT

Plaintiff's negligence (or the negligence of another person for whose negligence the plaintiff is responsible) that is a legal cause of an indivisible injury to the plaintiff reduces the plaintiff's recovery in proportion to the share of responsibility the factfinder assigns to the plaintiff (or other person for whose negligence the plaintiff is responsible).

COMMENTS

Comment:

a. History and definitions. This section provides the basic principle of comparative responsibility. It replaces the rule of contributory negligence as an absolute bar to a plaintiff's recovery under Restatement Second, Torts s 467.

There is disagreement on whether a plaintiff is absolutely barred by a percentage of responsibility at or above 50 percent or 51 percent. Some systems bar recovery when the plaintiff's percentage of responsibility is at or above 50 percent or 51 percent. They are generally known as modified comparative responsibility (50% bar or 51% bar) systems. Some systems bar recovery only when the plaintiff's percentage of responsibility is 100 percent. They are generally known as pure comparative responsibility systems. This section provides for a pure comparative responsibility system.

b. Scope. This section applies even though the conduct of a defendant was reckless or governed by strict liability. It replaces Restatement Second, Torts ss 482 (Reckless Conduct), 484 (Harm for Which There is Strict Liability), and 402A, Comment n (Strict Products Liability). See Restatement Third,Torts: Products Liability s 17. Whether it applies to intentional torts is not governed by this Restatement. See s 1, Comment c.

c. What constitutes plaintiff's negligence. What constitutes plaintiff's negligence is addressed in s 3. The bases for assigning a percentage of responsibility to a plaintiff is addressed in s 8.

d. Violation of statute. This section applies even though a party's conduct violated a statute, ordinance, or administrative regulation, unless its purpose is to place the entire responsibility for such harm on the party. See s 3, Comment a; Restatement Second, Torts s 483.

e. Indivisible injury. This section applies to an indivisible injury to the plaintiff. An injury is indivisible if, according to the applicable rules of causation, the plaintiff and each relevant person caused the entire injury.See s 50. Cases in which different parties cause divisible damages are governed by Topic 5.

COMMENTS

Illustrations:

1. A's automobile and B's automobile collide at an intersection, and A suffers an indivisible injury. A sues B, alleging that B's negligence caused the collision. A also sues C, the manufacturer of A's automobile, alleging that a defect in the automobile caused the collision. B and C claim that A's negligence also caused the collision. If the factfinder finds that the negligence of both A and B and the defect in A's automobile all caused A's indivisible injury, the effect of A's negligence is determined by the rule stated in this section.

2. A's automobile and B's automobile collide at an intersection, and A suffers personal injury. A's negligence and B's negligence both caused A's personal injury. C, a doctor, negligently treats A, aggravating A's injury. D steals goods out of A's disabled automobile. A sues B, C, and D. A's negligence and B's negligence caused A's personal injury, but C's negligence caused only a portion of A's damages for personal injury. A's negligence and B's negligence may have caused D's theft, depending on the applicable law of legal cause. D committed the theft and caused the loss of property. C's medical negligence did not cause the theft. Thus, A's damages are divisible. See s 50. The case is governed by Topic 5.

f. Legal cause. A plaintiff's negligence does not affect the plaintiff's recovery unless it was a legal cause of the plaintiff's injury. See Restatement Second, Torts ss 430-461.

COMMENTS

Illustration:

3. A, who is driving while intoxicated, is stopped at a red light. B negligently fails to stop and hits A's car in a rear-end collision. A sues B for personal injuries suffered in the collision. A's own negligence in driving while intoxicated does not affect A's recovery, because it did not cause A's injuries.

g. Calculation of plaintiff's recovery. Percentages of responsibility are assigned by special verdict to any plaintiff, defendant, settlor, immune person, or other relevant person, see Topic 2, whose negligence or other legally culpable conduct was a legal cause of the plaintiff's injury. The percentages of responsibility must total 100 percent. The factfinder makes a separate finding of the plaintiff's total damages. Those damages are reduced by the percentage of responsibility the factfinder assigns to the plaintiff. The resulting amount constitutes the plaintiff's "recoverable damages." Whether any particular defendant is liable for more than its own share of the recoverable damages is governed by Topic 2.

COMMENTS

Illustration:

4. A sues B. The factfinder assigns 40 percent responsibility to A and 60 percent responsibility to B. The factfinder finds that A's damages are $100,000. A's recovery is reduced from $100,000 to $60,000, which constitute the plaintiff's "recoverable damages."

h. Judicial reallocation of responsibility when an assignment of responsibility is legally erroneous. After the verdict, the trial or appellate court may determine that the factfinder erroneously assigned a percentage of responsibility to a party or other person submitted to the factfinder under Topic 2 ("nonliable person"). For example, the nonliable person may have been immune from liability or owed no duty of care, or there may have been insufficient evidence to support any assignment of comparative responsibility to that person.One remedy is for the court to reallocate the nonliable person's share of comparative responsibility proportionately to the remaining persons. This process has the advantage of avoiding a new trial. The interests of justice may sometimes require a new trial. The factors relevant to whether a new trial is required include: (1) whether eliminating the nonliable person from the factfinder's consideration might have substantially altered the jury deliberations, such as when the nonliable person was assigned the vast majority of responsibility and the remaining persons only very small percentages; (2) whether reallocation would put a party on the other side of a discontinuity in the jurisdiction's joint and several liability rules, see Topic 2, or modified comparative responsibility rule, see Comment n; and (3) whether the jurisdiction permits argument and instruction to the jury about those discontinuities.

COMMENTS

Illustrations:

5. A sues B and C. The factfinder assigns 30 percent responsibility to A, 60 percent responsibility to B, and 10 percent responsibility to C. The appellate court holds that the jury should not have been asked to assign a percentage of responsibility to C. The court may avoid a new trial by assigning 33 1/3 percent (30/90) responsibility to A and 66 2/3 percent (60/90) of the responsibility to B.

6. A sues B and C. The factfinder assigns 20 percent of the responsibility to A, 10 percent of the responsibility to B, and 70 percent of the responsibility to C. The appellate court holds that the jury should not have been asked to assign a percentage of responsibility to C. The court may order a new trial on the ground that C's absence from the percentages of responsibility would have substantially altered the jury's deliberations. This is especially appropriate in a jurisdiction that would bar A under a modified comparative responsibility system if C's comparative responsibility were reallocated to assign 66 2/3 percent (20/30) of the responsibility to A and 33 1/3 percent (10/30) of the responsibility to B.

i. Judicial adjustment of shares of responsibility to avoid a new trial. When a court determines that the factfinder's assignment cannot be upheld in light of the evidence, a procedure similar to remittitur and additur is a reasonable mechanism for judicial adjustment of the factfinder's assignments. Although such an adjustment is different from traditional remittitur and additur, it similarly avoids the expense and delay of new trials. Similar to remittitur or additur, such a procedure should be agreed to in lieu of a new trial by all parties adversely affected by a court's adjustment. On the other hand, if constitutional provisions in a jurisdiction bar the use of remittitur or additur for damages, they would similarly preclude the use of this similar device to adjust comparative responsibility shares.

j. Single measure of responsibility for imputed culpability. When a party is liable solely on the basis of another person's tortious conduct, there is no direct responsibility to assign to the party to whom liability is imputed.In that situation, the party who committed the tortious acts or omissions and the party to whom liability is imputed are treated as a single unit for the assignment of responsibility. For example, an employer who is vicariously liable for the negligence of an employee and the employee are treated as a single entity. Similarly, an innocent retailer and a manufacturer of a defective product are treated as a single entity. See also ss 5, 6.

A party to whom liability is imputed may also be liable independently. See ss 5, 6; Restatement Second, Torts s 877(b). Thus, an employer may be vicariously liable for the negligence of an employee and may also be liable for negligence in hiring the employee. The employer is responsible for the share of the verdict assigned to the employee and is also responsible for the share of the verdict assigned to its own negligence. Similarly, a retailer may be liable for selling a defective product manufactured by the manufacturer and also for the retailer's own negligence in failing to notice or remedy the defect.

This Comment does not affect any rights of indemnification. See s 32.

COMMENTS

Illustration:

7. C, who operates a heating and air conditioning business, employs B as a repairperson. D manufactures furnaces. E is the retail seller of the furnace.Because of B's negligence in repairing A's furnace, a dangerous carbon-monoxide condition develops, causing injury to A. In A's suit against B, C, and D, the factfinder assigns 60 percent of the responsibility to B for B's negligence in conducting the repairs, 10 percent of the responsibility to C for its negligence in hiring B, who was unqualified for the position, 20 percent responsibility to D because of its failure to warn of the danger of carbon monoxide concentrations under the conditions in which B left the furnace, and 10 percent responsibility to E for negligence in ignoring previous complaints about the problem. C is responsible for 70 percent of the verdict, that is, the 10 percent that is attributed to its own negligence and the 60 percent that is attributable to B's negligence. B is responsible only for B's own 60 percent share of the responsibility. E is responsible for 30 percent of the verdict, its own 10 percent responsibility for negligence, and D's 20 percent share for the defective furnace, which E sold.D is responsible only for its own 20 percent share of responsibility for the defective furnace. Whether C can recover from B for any of C's liability to A, or whether E can recover from D for any of E's liability to A, is addressed in Topic 3.

k. Defenses other than plaintiff negligence. This section does not apply to mitigate defenses--such as a statute of limitation, express assumption of risk, privilege, and immunity--that do not depend on an evaluation of the plaintiff's negligence.

l. Punitive or exemplary damages. This section does not apply to punitive or exemplary damages. Whether a factfinder may consider the plaintiff's negligence (including gross negligence) in deciding whether to award punitive damages is determined according to the applicable law of punitive damages.

m. Plaintiff's negligence that occurs before negligent rendition of a service, including medical malpractice. Notwithstanding s 3, Comment b, in a case involving negligent rendition of a service, a factfinder does not consider any plaintiff's conduct that created the condition the service was employed to remedy. The effects of that type of plaintiff's negligence on the plaintiff's recovery against other defendants and on rights of contribution and indemnity are governed by Topics 2 and 3, respectively.

COMMENTS

Illustrations:

8. A negligently injures himself in an automobile accident. A seeks medical treatment from B, who negligently aggravates A's injury. In a suit in which A seeks to recover from B for the part of A's injuries caused by B's medical malpractice, the factfinder does not consider A's negligence in causing the accident. A's negligence produced the very condition B undertook to treat.

9. A is injured in an automobile accident but negligently delays seeking medical treatment from B, making that treatment riskier. B aggravates A's injuries by negligently providing medical treatment. In a suit in which A seeks to recover from B for the part of A's injuries caused by B's medical malpractice, the factfinder does not consider A's negligence in delaying seeking medical treatment. A's negligence produced the very condition that B undertook to treat.

10. A seeks medical treatment from B. B aggravates A's condition because B negligently fails properly to diagnose A's problem. B's failure to diagnose A's condition was due in part to A's negligent failure to provide accurate answers to B's questions. In a suit in which A seeks to recover from B the part of A's injuries caused by B's negligence, the factfinder does consider A's negligence in failing accurately to answer B's questions. That conduct was not a cause of the condition B undertook to treat.

11. A seeks medical treatment from B. B negligently provides medical treatment and injures A. A's injuries are aggravated by A's negligent failure to follow B's instructions about taking medicine. A seeks to recover damages caused by B's medical negligence. The factfinder does take into account A's negligent failure to follow B's directions with respect to taking the medicine. That conduct was not a cause of the condition B undertook to treat.

12. A negligently damages his own automobile and takes it to B for repair. B negligently repairs the automobile. The faulty repairs cause the automobile to crash, injuring A. A sues B. The factfinder does not consider A's original negligence in damaging the automobile.

Similar issues can also arise in contexts not addressed by this Restatement. For example, in other forms of professional malpractice, such as legal malpractice, a client might be negligent in creating the problem the professional is employed to remedy. In claims against insurers for negligent claims-handling practices, an insured might be negligent in creating the damage for which claim is made. The applicability of this Comment to those cases is addressed in s 1, Comment e.

n. Modified comparative responsibility. Under modified comparative responsibility, a plaintiff is barred from recovery only if the factfinder assigns the plaintiff a percentage of responsibility greater than (51% bar) or equal to or greater than (50% bar) that of all of the defendants and other relevant persons to whom a percentage of responsibility is assigned. The plaintiff is not barred because the factfinder assigns a percentage of responsibility to the plaintiff that is equal to or greater than an individual defendant.

COMMENTS

Illustrations:

13. A sues B and C. The factfinder assigns 60 percent of the responsibility to A, 20 percent of the responsibility to B, and 20 percent of the responsibility to C, and finds that A's damages are $100,000. In a jurisdiction that has adopted a pure comparative responsibility system, A recovers a total of $40,000 from B and C. In a jurisdiction that has adopted a modified comparative responsibility system (51% bar), A recovers nothing from B and C. In a jurisdiction that has adopted a modified comparative responsibility system (50% bar), A recovers nothing from B and C.

14. A sues B and C. The factfinder assigns 50 percent responsibility to A, 30 percent responsibility to B, and 20 percent responsibility to C, and finds that A's damages are $100,000. In a jurisdiction that has adopted a pure comparative responsibility system, A recovers a total of $50,000 from B and C. In a jurisdiction that has adopted a modified comparative responsibility system (51% bar), A recovers a total of $50,000 from B and C. In a jurisdiction that has adopted a modified comparative responsibility system (50% bar), A recovers nothing from B and C.

15. A sues B and C. The factfinder assigns 40 percent responsibility to A, 40 percent responsibility to B, and 20 percent responsibility to C, and finds that A's damages are $100,000. In a jurisdiction that has adopted a pure comparative responsibility system, A recovers a total of $60,000 from B and C. In a jurisdiction that has adopted a modified comparative responsibility system (51% bar), A recovers a total of $60,000 from B and C. A is not barred from recovering from C merely because A's percentage of responsibility is greater than C's percentage of responsibility. In a jurisdiction that has adopted a modified comparative responsibility system (50% bar), A recovers a total of $60,000 from B and C. A is not barred from recovering from B or C merely because A's percentage of responsibility is greater than C's percentage of responsibility and equal to B's percentage of responsibility.

o. Ameliorative doctrines. The rule that the ameliorative doctrines of last clear chance, avoidable consequences, and mitigation of damages do not forgive conduct that would otherwise constitute plaintiff's negligence applies under pure comparative responsibility and under the 50 percent bar and 51 percent bar versions of modified comparative responsibility. See s 3, Comment b.

NOTES

REPORTERS' NOTE

Comment a. History and definitions. Contributory negligence as an absolute bar to a plaintiff's recovery dates back to the English case of Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (1809). Contributory negligence dominated American negligence law until the middle of this century. Then an avalanche began favoring comparative responsibility, whereby a plaintiff's negligence merely reduces the plaintiff's recovery. Now only five jurisdictions--Alabama, Maryland, North Carolina, Virginia, and the District of Columbia--continue to use contributory negligence as an absolute bar.

There are several antecedents to the widespread adoption of comparative responsibility. In admiralty cases in England and the United States, damages were divided between two faulty vessels, first pro rata and then according to the percentage of fault of each vessel. See, e.g., Schooner Catherine v. Dickinson, 58 U.S. (17 How.) 170, 15 L.Ed.2d 233 (1855) (pro rata); United States v. Reliable Transfer Co., 421 U.S. 397, 44 L.Ed.2d 251, 95 S.Ct. 1708 (1975) (percentage of fault). See generally Nicholas Healy & Joseph Sweeney, Law of Maritime Collision 320-36 (1998). Congress adopted comparative negligence in the Federal Employer's Liability Act of 1908 and in the Jones Act and Death on the High Seas Act in1920. See Act of April 22, 1908, ch. 149, s 3, 35 Stat. 66, 45 U.S.C. s 53 (Federal Employer's Liability Act); Act of June 5, 1920, ch. 250, s 33, 41 Stat. 1007, 46 U.S.C. s 688 (Jones Act); Act of March 30, 1920, ch. 111, s 6, 41 Stat. 537, 46 U.S.C. 766 (Death on the High Seas Act). Moreover, a few state legislatures adopted various versions of comparative negligence in the first half of this century. See, e.g., Ga.Code Ann. ss 46-8-291, 51-11-7 (Michie 1982); Miss.Code Ann. s 11-7-15 (1972); Wis.Laws 1931, ch. 242, Wis.Stat.Ann. s 895.045 (West 1983); S.D.Sess.Laws 1941, ch. 160 (distinguishing between slight and gross negligence); Neb.Rev.Stat. s 25-1151 (1989) (same). For thorough descriptions of the early development of comparative fault in the United States, see Gregory, A Study in the Administrative Aspects of Comparative Negligence and Contribution in Tort Litigation 56-67 (1936), and Schwartz, Comparative Negligence1-27 (2d ed. 1986).

The modern American adoption of comparative responsibility began in Arkansas in 1955. Arkansas first adopted a pure comparative negligence statute and then amended it to embody modified comparative negligence. See Ark. Acts 1955, No. 191, s 1; Ark.Acts 1957, No. 296, s 2. Maine followed suit with a modified comparative negligence statute in 1965. See Me.Laws 1965, ch. 424, Me.Rev.Stat.Ann., tit. 14, s 156 (1980). In the 1970s the avalanche began, leading to the nearly uniform adoption of comparative principles that exists today. See generally Schwartz, Comparative Negligence, 19-27 (2d ed. 1986).

Widespread judicial adoption of comparative responsibility began with a 1967 decision by the Illinois Court of Appeals. See Maki v. Frelk, 85 Ill.App.2d439, 229 N.E.2d 284 (1967). Although the Illinois Supreme Court reversed the Court of Appeals, 40 Ill.2d 193, 239 N.E.2d 445 (1968), the Court of Appeals's decision gave impetus to reform, and in 1973 the Florida Supreme Court adopted pure comparative negligence. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Hoffman was followed two years later by a similar decision by the California Supreme Court. See Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975).

Currently, 10 states have judicially adopted comparative responsibility systems. See Kaatz v. State, 540 P.2d 1037 (Alaska 1975), codified Alaska Stat. s 9.17.060 (Supp.1993); Li v. Yellow Cab Co., 532 P.2d 1226 (1975); Hoffman v. Jones, 280 So.2d 431 (1973), codified Fla.Stat.Ann. s 868.81 (West Supp.1993); Hilen v. Hays, 673 S.W.2d 713 (Ky.1984); Placek v. City of Sterling Heights, 275 N.W.2d 511 (Mich.1979); Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983); Scott v.Rizzo, 634 P.2d 1234 (N.M.1981); McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992); Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W.Va.1979); Nelson v. Concrete Supply Co., 399 S.E.2d 783 (S.C.1991). Thirty-six states have legislatively adopted comparative responsibility systems. See Ariz.Rev.Stat.Ann. s 12-205(A) (Supp.1993); La.Civ.Code Ann. art. 2323 (West Supp.1993); Miss.Code Ann. s 11-7-15 (1972); N.Y.Civ.Prac.Law s 1411 (McKinney 1976); R.I.Gen.Laws s 9-20-4 (1985); Wash.Rev.Code Ann. s 4.22.005 (1988); Ark.Stat.Ann. s 16-64-122 (Supp.1993); Colo.Rev.Stat. s 13-21-111 (1987); Ga.Code Ann. s 51-11-7 (Michie 1982); Idaho Code s 6-801 (1990); Kan.Stat.Ann. s 60-258a (Ensley Supp.1993); Me.Rev.Stat.Ann. tit. 14, s 156 (1980); Neb.Rev.Stat. s 25- 21, 185.09 (Cum.Supp.1992); N.D.Cent.Code s 32-03.2-02 (1993); Utah Code Ann. s 78-27-38 (Michie 1992); Conn.Gen.Stat. s 52-572h (1991); Del.Code Ann. tit. 10, s 8132 (Supp.1992); Haw.Rev.Stat. s 663-31 (1985); Ill.Ann.Stat. ch. 735 s 5/2-1116 (Smith-Hurd Supp.1993); Ind.Code Ann. s 34-4-33-3, 4 (West Supp.1993); Iowa Code Ann. s 668.3 (West 1987); Mass.Gen.Laws Ann. ch. 231, s 85 (1985); Minn.Stat.Ann. s 604.01(1) (West Supp.1993); Mont.Code Ann. s 27-1-702-703 (1993); Nev.Rev.Stat. s 41-141 (1991); N.H.Rev.Stat.Ann. s 507:7-d (Supp.1993); N.J.Stat.Ann. ss 2A:15-5.1 to 5.3 (West 1987); Ohio Rev.Code Ann. s 2315.19 (Baldwin 1991); Okla.Stat.Ann. tit. 23, ss 13, 14 (West 1987); Or.Rev.Stat. s 18.470 (1993); 42 Pa.Cons.Stat.Ann. s 7102 Purdon (1982 and Supp.1993); Tex.Civ.Prac. & Rem.Code Ann. ss 33.001, 33.012 (Vernon Supp.1993); Vt.Stat.Ann. tit. 12, s 1036 (Supp.1993); Wis.Stat.Ann. s 895.045 (West 1983); Wyo.Stat. s 1-1-109 (1988); S.D.Codified Laws Ann. s 20-9-2 (1987). Only five jurisdictions--Alabama, Maryland, North Carolina, Virginia, and the District of Columbia--continue to apply contributory negligence as an absolute bar to recovery.

One of the most controversial issues surrounding the adoption of comparative responsibility has been whether to adopt a modified or pure system. Under a modified system, the plaintiff is barred from recovery if the factfinder assigns the plaintiff a percentage of responsibility equal to or above 50 percent or 51 percent. If the factfinder assigns the plaintiff a percentage of responsibility below that percentage, the plaintiff's recovery is reduced by the percentage the factfinder assigns to the plaintiff. Under a pure system, the plaintiff's recovery is always reduced by the percentage of responsibility the factfinder assigns to the plaintiff, regardless of its magnitude. The plaintiff is never barred from recovery merely because of the percentage of responsibility the factfinder assigns to the plaintiff.

American courts and legislatures are divided on the type of comparative responsibility system they have adopted. Of the 10 states that currently have judicially adopted comparative responsibility systems, seven use pure comparative responsibility. See Kaatz v. State, 540 P.2d 1037 (Alaska 1975), codified Alaska Stat. s 9.17.060 (Supp.1993); Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975); Hoffman v. Jones, 280 So.2d 431 (1973), codified Fla.Stat.Ann. s 868.81 (West.Supp.1993); Hilen v. Hays, 673 S.W.2d 713 (Ky.1984); Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979); Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983); Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981). Two are modified (50% bar) comparative responsibility systems. See McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992); Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979). One is a modified (51%) comparative responsibility system. See Nelson v. Concrete Supply Co., 399 S.E.2d 783 (S.C.1991).

Of the 36 states that currently have legislatively adopted comparative responsibility systems, six use pure comparative responsibility. See Ariz.Rev.Stat.Ann. s 12205(A) (Supp.1993); La.Civ.Code Ann. art. 2323 (West Supp.1993); Miss.Code Ann. s 11-7-15 (1972); N.Y.Civ.Prac.Law s 1411 (McKinney 1976); R.I.Gen.Laws s 9-20-4 (1985); Wash.Rev.Code Ann. s 4.22.005 (1988). Nine have modified (50% bar) comparative responsibility systems. See Ark.Stat.Ann. s 16-64122 (Supp.1993); Colo.Rev.Stat. s 13- 21-111 (1987); Ga.Code Ann. s 51-11-7 (Michie 1982); Idaho Code s 6-801 (1990); Kan.Stat.Ann. s 60-258a (Ensley Supp.1993); Me.Rev.Stat.Ann. tit. 14, s 156 (1980); Neb.Rev.Stat. s 25-21, 185.09 (Cum.Supp.1992); N.D.Cent.Code s 32-03.2-02 (1993); Utah Code Ann. s 78-27-38 (Michie 1992). Twenty have modified (51% bar) comparative responsibility systems. See Conn.Gen.Stat. s 52-572h (1991); Del.Code Ann. tit. 10, s 8132 (Supp.1992); Haw.Rev.Stat. s 663-31 (1985); Ill.Ann.Stat. ch. 735 s 5/2- 1116 (Smith-Hurd Supp.1993); Ind.Code Ann. s 34-4-33-3, 4 (West Supp.1993); Iowa Code Ann. s 668.3 (West 1987); Mass.Gen.Laws Ann. ch. 231, s 85 (1985); Minn.Stat.Ann. s 604.01(1) (West Supp.1993); Mont.Code Ann. s 27-1-702-703 (1993); Nev.Rev.Stat. s 41-141 (1991); N.H.Rev.Stat.Ann. s 507:7-d (Supp.1993); N.J.Stat.Ann. ss 2A:15-5.1 to 5.3 (West 1987); Ohio Rev.Code Ann. s 2315.19 (Baldwin 1991); Okla.Stat.Ann. tit. 23 ss 13, 14 (West 1987); Or.Rev.Stat. s18.470 (1993); 42 Pa.Cons.Stat.Ann. s 7102 (Purdon 1982 and Supp.1993); Tex.Civ.Prac. & Rem.Code Ann. ss 33.001, 33.012 (Vernon Supp.1993); Vt.Stat.Ann. tit. 12, s 1036 (Supp.1993); Wis.Stat.Ann. s 895.045 (West 1983); Wyo.Stat. s 1-1-109 (1988). One state, South Dakota, distinguishes between slight and gross negligence of the plaintiff and defendant. See S.D.Codified Laws Ann. s 20-9-2 (1987).

This section adopts pure comparative responsibility. A court should use modified comparative responsibility only when a statute requires it to do so. Modified comparative responsibility can be supported by several rationales. It may promote settlements and provide trial courts with a basis for summary judgment in relatively weak cases. It may also reflect a judgment that the legal system should be used only in cases where the equities clearly favor shifting losses. Three jurisdictions have by statute shifted from pure comparative responsibility to modified comparative responsibility; no jurisdiction has by statute shifted the other way. See Ark.Code Ann. s 16- 64-122 (1995); Ill.Ann Stat. ch. 735, paras. 5/2-1107.1, 5/2-1116, 5/2-1117; Iowa Code Ann. ss 619.17, 668.1-668.10 (1995). Thus, modified comparative responsibility is not without principled support. Moreover, jurisdictions that already use modified comparative responsibility may decline shifting to pure comparative responsibility on the ground that change itself would create dislocation costs.

Nevertheless, this section adopts pure comparative responsibility unless a statute requires modified comparative responsibility. Pure comparative responsibility reflects the overwhelming majority of common-law decisions, because it better reflects the underlying goal of comparative responsibility: apportioning losses among various parties according to their respective shares of responsibility. Modified comparative responsibility retains some of the unfairness imposed by contributory negligence as an absolute bar.

Comment b. Scope. The rationale for applying comparative responsibility to strict liability is addressed in s 1, Reporters' Note to Comment b.

Before comparative responsibility, several courts held that a plaintiff's negligence was not an absolute bar to recovery when the defendant's conduct was reckless or constituted gross negligence. See, e.g., Falk v. Mortensen, 207 Or. 130, 295 P.2d 182 (1955); Adkisson v. City of Seattle, 42 Wash.2d 676, 258 P.2d 461 (1953). Some courts continue to apply this rule even after the adoption of comparative responsibility. See, e.g., Derenberger v. Lutey, 207 Mont. 1, 674 P.2d 485 (1983). Most courts that have considered the issue, however, have concluded that the rule was merely an ameliorative device designed to escape the harsh, all-or-nothing consequences of contributory negligence as an absolute bar. Thus, they abandoned the rule after the adoption of comparative responsibility. See, e.g., Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962); Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975). Comment b reflects the rationale in Bielski and Li.

Courts developed other ameliorative doctrines to escape the harsh effects of contributory negligence as an absolute bar to a plaintiff's recovery. Some of these rules, such as the last clear chance doctrine, were based on the relative timing of the plaintiff's and defendant's negligence. These doctrines are addressed in s 3, Comment b, and the accompanying Reporters' Note. Others were based on the type of case or circumstances of the injury, such as the so- called "humanitarian" doctrine, which relieved the plaintiff of any negligence if the plaintiff was a pedestrian hit by a railroad train or an automobile. See, e.g., Wilson v. Missouri-Kansas-Texas Railway Co., 595 S.W.2d 41 (Mo.App.1980). The rationale behind all of these ameliorative doctrines is undermined by the adoption of comparative responsibility.

Comment c. What constitutes plaintiff's negligence. This section addresses the effect plaintiff's negligence has on plaintiff's recovery. What constitutes plaintiff's negligence and the factors a factfinder should employ to determine the magnitude of a plaintiff's responsibility are addressed in ss 3 and 8.

Comment d. Violation of statute. Prior to comparative responsibility, a plaintiff's negligence was an absolute bar to a plaintiff's recovery, even though the defendant's conduct violated a statute, ordinance, or administrative regulation. See, e.g., Restatement Second, Torts s 483; Dart v. Pure Oil Co., 27 N.W.2d 555 (Minn. 1947). There was an exception when a particular statute was designed to protect the plaintiffs, such as children, from their own incompetence. See, e.g., Restatement Second, Torts s 483, Comment c; Zerby v. Warren, 297 Minn. 134, 210 N.W.2d 58 (1973). This exception was a reflection of the general principle that the purpose of a statute influences the role its violation plays. There is no good reason to change this rule under comparative responsibility, and no case has done so. Comment d perpetuates Restatement Second, Torts s 483.

Comment e. Indivisible injury. This section applies to indivisible injuries. Divisible injuries generate special problems. When different parties cause different portions of an injury, the factfinder has two tasks of apportionment. It must ascertain who caused what portion of the injury, and it must determine the relative culpability of the parties.

Consider a driver who is injured in a collision with a negligent motorist where (1) the original impact causes injury to his back, (2) a defective steering wheel shatters, injuring his hand, and (3) a doctor treating him for the injured hand negligently administers a drug, causing a rash. The negligent driver caused all the injuries. The steering wheel manufacturer caused only the cut hand and the rash. The doctor caused only the rash. Any negligence of the plaintiff in causing the collision caused all three injuries. The factfinder must divide the responsibility for the back injury between the plaintiff and the driver, the responsibility for the cut hand among the plaintiff, the driver, and the steering wheel manufacturer, and the responsibility for the rash among the plaintiff, the driver, the steering wheel manufacturer, and the doctor. This involves apportioning the loss both by causation and by percentages of responsibility. Very few courts have addressed how this should be done. See, e.g., Moore v. Johns Manville Sales Corp., 781 F.2d 1061 (5th Cir.1986); Phelan v. Lopez, 701 S.W.2d 327 (Tex.App.1985). This section does not address this problem. Allocating divisible injuries according to causation and responsibility is addressed in Topic 5.

Similarly, this section does not apply to other complex cases involving multiple tortfeasors. For example, in jurisdictions that have adopted market- share liability for product cases, the factfinder makes percentage findings with respect to the market share of each defendant. See, e.g., Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980); Martin v. Abbott Laboratories, 102 Wash.2d 581, 689 P.2d 368 (1984); Collins v. Eli Lilly & Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984). These percentages reflect different findings than do comparative responsibility percentages. This section does not address how the factfinder or court should apportion a loss when a particular case requires findings involving market-share percentages. That issue is addressed in Topic 5.

Comment f. Legal cause. Before comparative responsibility, a plaintiff's contributory negligence barred recovery only if the plaintiff's negligence was a legal cause of the injuries. See Restatement Second, Torts ss 465, 430-461. Comparative responsibility does not alter that requirement. See s 3 and Comment e.

Comment g. Calculation of plaintiff's recovery. By convention, the percentages assigned by the factfinder to the parties and other relevant persons add to 100 percent. Since the jury must divide the 100 available percentage points among various actors, the percentage assigned to any one person depends on who among the possible relevant persons--such as settling tortfeasors, immune tortfeasors, third-party defendants, and nonparty tortfeasors--the court instructs the factfinder to consider. Thus, the effect of plaintiff's negligence depends on to whom the court asks the factfinder to assign a percentage of responsibility. That issue is addressed in Topic 2.

Comment h. Judicial reallocation of responsibility when an assignment of responsibility is legally erroneous. When the plaintiff is not assigned any comparative responsibility, when there are no discontinuities in the comparative responsibility system (such as a threshold for joint and several liability), and when there is not a large disparity in the percentages assigned to the parties, it is desirable to have the court reallocate the share of responsibility assigned to a nonliable party. The factfinder, after all, assigns comparative responsibility, which entails a comparison of the responsibility of the parties and persons submitted to the jury. However rough this assignment is (and therefore imperfectly reproducible in subsequent trials), it seems reasonable to assume that it entails a determination of the relative responsibility of the parties. Proportionally reallocating the nonliable party's percentage serves the goals of just apportionment and administrative efficiency. See Adams v. Children's Mercy Hospital, 848 S.W.2d 535 (Mo.Ct.App.1993); Cartel Capital Corp. v. Fireco, 410 A.2d 674 (N.J.1980); Haney Electric Co. v. Hurst, 624 S.W.2d 602 (Tex.Civ.App.1981).

When a jury assigns a percentage of responsibility to a plaintiff, that assignment may reflect an absolute sense of the plaintiff's responsibility for the injury, see Kibbons v. Union Electric Co., 823 S.W.2d 485 (Mo.1992), or it may reflect a comparison of the plaintiff's responsibility with the other parties'responsibility. Although that ambiguity might suggest that a new trial is required, Topic 1 contemplates that the factfinder will assign percentages in the second fashion. Unless there is some clear indication that the factfinder did not make a comparative assignment, a court should reallocate even when the plaintiff has been assigned a percentage of responsibility.

On the other hand, if there are discontinuities in the jurisdiction's comparative responsibility system, especially if the jury is told about those discontinuities, judicial reallocation is problematic, because it may deviate substantially from what the factfinder would have done in light of the discontinuities. See, e.g., Colo.Rev.Stat. s 13-21-111.5(5) (1989); Haw.Rev.Stat. s 663-31(d) (1985); Iowa Code Ann. s 668.3(5) (1987); Minn.R.Civ.P. 49.01(2) (Supp.1991); Or.Rev.Stat. s 18.480(2) (1991); Wyo.Stat. s 1-1-109 (1991); N.D.Cent.Code s 9-10-07 (1987); Seppi v. Betty, 579 P.2d 683, 692 (Idaho 1978); Reese v. Werts Corp., 379 N.W.2d 1, 3 (Iowa 1985); Schwennen v. Abell, 430 N.W.2d 98 (Iowa 1988) (threshold for joint and several liability of which factfinder is informed requires new trial rather than permitting reallocation); Thomas v. Board of Township Trustees, 582 P.2d 271, 280 (Kan. 1978); Wing v. Morse, 300 A.2d 491, 501 (Me.1973); Thurston v. Ballou, 505 N.E.2d 888, 891 (Mass.App.Ct.1987); Martel v. Montana Power Co., 752 P.2d 140, 146 (Mont.1988); Roman v. Mitchell, 413 A.2d 322, 327 (N.J.1980); Schabe v. Hampton Bays Union Free Sch. Dist., 480 N.Y.S.2d 328, 336 (1984); Smith v. Gizzi, 564 P.2d 1009, 1013 (Okla.1977); Peair v. Home Ass'n of Enola Legion No. 751, 430 A.2d 665, 671-72 (Pa.Super.1981); Dixon v. Stewart, 658 P.2d 591, 596-97 (Utah 1982); Adkins v. Whitten, 297 S.E.2d 881, 884 (W.Va.1982). Even if the jury is not informed of the discontinuities, they can have such a major impact on apportionment a new trial may be preferable.

Another circumstance that may require a new trial is the rare occasion when a court overturns the liability of a party who was assigned a large percentage. The impact of that party on the factfinder's deliberations may have been so substantial that a new trial is required. The smaller the percentage that is legally erroneous, the more willing a court should be to reallocate rather than require a new trial. Thus, in Price v. Kitsap Transit, 886 P.2d 556 (Wash.1994), the factfinder assigned 80 percent comparative responsibility to a four-year-old child who suddenly pressed the emergency stop switch on a bus, 10 percent to the child's father, and 10 percent to the bus company. On appeal, the court held that a four-year-old cannot be found negligent. Although the court did not explain its reasoning, it remanded the case to the trial court for a redetermination of the appropriate allocation of comparative responsibility between the father and the transit company.

When a new trial is required, the questions of whether it can be limited to assigning percentages of responsibility--and, if so, whether the parties are bound, at a minimum, by the percentage of comparative responsibility assigned in the first trial--is left to the law of the jurisdiction. See McHaffie v. Bunch, 891 S.W.2d 822, 828 (Mo.1995); Kibbons v. Union Electric Co., 823 S.W.2d 485 (Mo.1992). Because assignments of responsibility are comparative and therefore interdependent, when an assignment of responsibility to one party is overturned because of evidentiary, instructional, or other error, any new trial would, at minimum, have to start anew with assignments of comparative responsibility. See Nichols v. Westfield Industries, Ltd., 380 N.W.2d 392, 402 (Iowa 1985) (Uhlenhopp, J., dissenting). The lone exception is when comparative responsibility is only assigned to a defendant and to other nonparties. See Strickland v. Owens Corning, 142 F.3d 353 (6th Cir.1998) (70% comparative responsibility assigned to defendant and 30%assigned to nonparty manufacturers of asbestos).

Comment i. Judicial adjustment of shares of comparative responsibility to avoid a new trial. Remittitur has long been used to reduce damages that a court finds are excessive and would otherwise require a new trial. See Irene Sann, Note, Remittitur Practice in the Federal Courts, 76 Colum.L.Rev. 299 (1976); see also Blunt v. Little, 3 F.Cas. 760 (C.C.A.Mass.1822) (employing remittitur to reduce excessive verdict for plaintiff). It has the advantage of avoiding the expense and delay of a new trial. See Fisch v. Manger, 130 A.2d 815 (N.J.1957); Carlin, Remittiturs and Additurs, 49 W.Va.L.Q. 1 (1942). Since remittitur and additur require the consent of the party who received the more favorable jury award, that party has no legitimate complaint. If the damages are reduced to the maximum that would be legally permissible (in the case of remittitur) or increased to the minimum that would be legally acceptable (in the case of additur), the party who otherwise would be entitled to a new trial cannot legitimately complain. See, e.g., Jenkins v. Aquatic Contractors & Engineers, 446 F.2d 520 (5th Cir.1971) (adopting maximum recovery rule for remittiturs); see generally 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedures 2815 (1995). Similarly, judicial reallocation of percentages of comparative responsibility to the maximum that is legally permissible (in the case of a reduction of a party's share of comparative responsibility) or the minimum that is legally permissible (in the case of an increase of a party's share of comparative responsibility) should not impair any legitimate concern of the parties, while making a substantial contribution to fairness. A trial court making such an adjustment must exercise its discretion, keeping in mind the law, see s 8, and evidence bearing on the determination of the parties' shares of comparative responsibility. See, e.g., Glazer v. Glazer, 278 F.Supp. 476 (E.D.La.1968). Similarly,judicial reallocation of percentages of responsibility within the range supported by the evidence does not substantially impair the right to jury trial and makes a substantial contribution to fairness.

The case law is mixed on the use of additur and remittitur for comparative responsibility assignments, although there appears a modest trend toward acceptance of remittitur and additur in this context. Some courts have endorsed their use. See Strickland v. Owens Corning, 142 F.3d 353 (6th Cir.1998); Davis v. Consolidated Rail Corp., 788 F.2d 1260 (7th Cir.1986); Clement v. Frey, 666 So.2d 607 (La.1996); Cotrona v. Johnson & Wales College, 501 A.2d 728 (R.I.1985); Bishop v. Harski, 465 A.2d 577 (N.J.Super.Ct.1983); cf. Karian v. Anchor Motor Freight, Inc., 535 N.Y.S.2d 175 (App.Div.1988) (suggesting the appropriate reallocation of comparative responsibility but requiring that all parties consent to avoid a new trial). A comparable number have decided that remittitur and additur are not available. See Akermanis v. Sea-Land Service, Inc., 688 F.2d 898 (2d Cir.1982) (concluding that, because additur is a violation of Seventh Amendment right to jury trial, increasing the plaintiff's comparative responsibility (and thereby reducing defendant's) violates right to jury trial); Pruitt v. Suffolk Ob-Gyn Group, 644 F.Supp. 593 (E.D.N.Y.1986) (remittitur not available because of Akermanis precedent); Schelbauer v. Butler Manufacturing Co. 673 P.2d 743 (Cal.1984) (distinguishing remittitur of comparative responsibility from remittitur of damages because the former involves an issue of liability rather than damages); Rowlands v. Signal Construction Co., 549 So.2d 1380 (Fla.1989) (remittitur not available for comparative responsibility assignments because: (1) it is contrary to settled law; (2) comparative responsibility assignment is peculiarly within the jury's province; and (3) questions of liability, including apportionment of liability, are subject to constitutional right to jury determination). Some courts have ordered new trials when a comparative responsibility assignment was judicially overturned but without discussing the possibility or permissibility of remittitur or additur. See, e.g., Hutcherson v. City of Phoenix, 933 P.2d 1251 (Ariz.Ct.App.1996).

Constitutional provisions regarding the right to jury trial may prevent the use of additur or remittitur. See Dimick v. Schiedt, 55 S.Ct. 296 (1935) (holding that additur, but not remittitur, violates Seventh Amendment right to jury trial). Dimick is applicable only to cases in federal courts; many states permit and regularly employ additur. See Freeman v. Wood, 401 N.E.2d 108 (Mass.1980). To the extent that reasoning like in Dimick results in additur being unconstitutional usurpation, additur or remittitur for erroneous comparative responsibility apportionments may be similarly unconstitutional. Even remitting a percentage of comparative responsibility assigned to a defendant results in increasing (additur) another party's comparative responsibility assignment. That increase is not within the jury's finding, which implicates the reasoning in Dimick. On the other hand, to the extent that judicial adjustment of the jury's assignment of comparative responsibility does not increase the total amount of the judgment recovered by the plaintiff, the practice may be consistent with Dimick, which was concerned that additur provided the plaintiff with recovery greater than given by the jury. Courts considering the use of additur and remittitur of comparative responsibility assignments need to remain sensitive to these constitutional proscriptions.

Even when remittitur and additur may not be constitutionally employed, a court may, after concluding that a new trial is required, suggest an adjustment to the comparative responsibility assignment that might serve to facilitate a settlement among the parties, thereby obviating the need for a new trial. See, e.g., Karian v. Anchor Motor Freight, 535 N.Y.S.2d 175 (App.Div.1988).

Comment j. Single measure of responsibility for imputed culpability.Even before comparative responsibility, courts grouped together vicariously liable parties when the number of liable parties affected liability. In Wold v. Grozalsky, 277 N.Y. 364, 14 N.E.2d 437 (1938), the court held that joint owners of a building whose common wall with another building collapsed should be treated as a single unit for determining pro rata shares of contribution. See also Martindale v. Griffin, 259 N.Y. 530, 182 N.E. 167 (1932). Since the adoption of comparative responsibility, courts have held that no separate assignment of fault should be imposed on a party liable only vicariously, and it appears that this is the practice even in courts that have not had occasion to address the issue. See, e.g., Miller v. Stouffer, 9 Cal.App.4th 70, 11 Cal.Rptr.2d 454, 462 (Cal.App.1992); Larsen v. Minneapolis Gas Co., 282 Minn. 135, 163 N.W.2d 755 (1968); Sandford v. Chevrolet Division, 292 Or. 590, 642 P.2d 624 (1982) (single assignment of responsibility to product manufacturer and retailer). Few comparative responsibility statutes address this issue, but those that do support this Comment. See Ariz.Rev.Stat.Ann. s 12-2502-2 (1994); Iowa Code Ann. s 668.3(2)(a) (West 1989); N.J.Rev.Stat. s 2A:53A-1 (Supp.1993); N.D.Cent.Code s 32-38-02(2) (1993); Wash.Rev.Code.Ann. s 4.22.070(1)(a) (West Supp.1994). Model statutes and commentators strongly support the rule. See Uniform Contribution Among Tortfeasors Act s 2(b) and comment (1955); Uniform Comparative Fault Act s 2(a)(2) and comment (1977); Model Uniform Products Liability Act s 111(B)(1)(b), 44 Fed.Reg. 62,734 (1979); Epstein, Plaintiff's Conduct in Products Liability Actions: Comparative Negligence, Automatic Division and Multiple Parties, 45 J. Air L. & Com. 87, 113 & n. 48 (1979). But see Sobelsohn, Comparing Fault, 60 Ind.L.J.413, 457-62 (1985) (arguing that it is preferable to instruct jury to assign 0% responsibility to vicariously liable party because the jury might be confused by an instruction to treat two parties as a single entity).

Comment k. Defenses other than plaintiff's negligence. Comparative responsibility does not mean that every defense operates as a percentage reduction of, not a bar to, the plaintiff's recovery. Under comparative responsibility, most courts merge several defenses into plaintiff's negligence, such as implied assumption of risk, avoidable consequences, and mitigation of damages. See s 3, Comments b, c; Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984). These defenses are based on the factfinder's evaluation of the reasonableness of the plaintiff's conduct. Other defenses--such as contractual assumption of risk, immunity, privilege, and statute of limitation--are based on other policy considerations. No reported decision has applied them as a percentage reduction. They continue to constitute an absolute bar to recovery.

Comment l. Punitive or exemplary damages. Comment j reflects nearly uniform case law that punitive or exemplary damages are not reduced by plaintiff's negligence. See, e.g., Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71 (Mo.1990); Godbersen v. Miller, 439 N.W.2d 206 (Iowa 1989); Amoco Pipeline Co. v.Montgomery, 487 F.Supp. 1268 (W.D.Okla.1980). But see Parr v. Central Soya Co., 732 F.Supp. 738 (E.D.Mich.1990). This does not mean, however, that plaintiff's negligence might not affect the availability of punitive damages in other ways. Some jurisdictions do not permit a plaintiff to recover punitive damages unless he recovers compensatory damages, or they limit punitive damages to a ratio of compensatory damages. In these jurisdictions, the plaintiff's negligence affects punitive damages to the extent it reduces or bars compensatory damages. See, e.g., Tucker v. Marcus, 142 Wis.2d 425, 418 N.W.2d 818 (1988); Lira v. Davis, 832 P.2d 240 (Colo.1992).

Comment m. Plaintiff's negligence that occurs before negligent rendition of service, including medical malpractice. The problem addressed in this Comment has not been squarely addressed by many courts. Nevertheless, most courts seem to assume this is the rule as the background against which medical malpractice litigation takes place. A few courts have actually held that. See Norman v. Mandarin Emergency Care Center, Inc., 490 So.2d 76 (Fla.Ct.App.1986); Whitehead v. Linkous, 404 So.2d 377 (Fla.Ct.App.1981); Matthews v. Williford, 318 So.2d 480, 483 (Fla.Ct.App.1975). But see Vandergriff v. Fort Pierce Memorial Hospital, Inc., 354 So.2d 398 (Fla.Ct.App.1978). Even though few courts have expressly addressed this issue, it is an important one. The treatment of the timing of the plaintiff's and defendant's conduct in s 3, Comment b, requires that this issue be addressed with clarity.

The consequences of the plaintiff's negligence are sometimes the very conditions a doctor or other service provider agrees to treat. Examples include a plaintiff who seeks medical treatment for injuries received in an automobile accident negligently caused by the plaintiff, for injuries received in a skiing accident negligently caused by the plaintiff, or maybe even for heart disease caused by the plaintiff's unreasonable refusal to eat or exercise properly. No reported case holds that a medical malpractice plaintiff's recovery is barred or reduced because of that type of negligence. This problem can also arise with respect to other services, such as when an automobile owner negligently damages an automobile he takes to a repairperson, when a homeowner negligently creates a problem she takes to an engineer or plumber, a client negligently causes the problem he takes to a lawyer, or a business negligently causes a financial problem it takes to an accountant. Again, no reported case has counted that type of negligence against a plaintiff. This problem can also arise in contexts not directly governed by this Restatement, such as claims against insurance companies for negligent claims-handling practices. A court would not reduce the recovery of a plaintiff who sued for negligent handling of a fire insurance claim because the insured was negligent in causing the fire. See, e.g., Pryor, Comparative Fault and Insurance Bad Faith, 72 Tex.L.Rev. 1505 (1994); Powers, What a Comparative Bad Faith Defense Tells Us About Bad Faith Insurance Litigation, 72 Tex.L.Rev. 1571 (1995). This does not mean that the plaintiff's "pre-presentment" negligence is irrelevant. The defendant is liable only for the damages the defendant's negligence caused. Thus, a doctor who treats an accident victim is not liable for the original injury, whether the accident was caused by the patient's negligence or not.

It is difficult to account for pre-presentment negligence on traditional tort principles. In each case, the plaintiff's own negligence was a legal cause of the damages. The doctor's subsequent negligence was an intervening cause, but intervening professional negligence is usually foreseeable. See, e.g., Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958). The best explanation of pre-presentment negligence is that the consequences of the plaintiff's negligence--the medical condition requiring medical treatment--caused the very condition the defendant doctor undertook to treat, so it would be unfair to allow the doctor to complain about that negligence.

Not all forms of plaintiff's negligence in a medical malpractice case fall under this rationale. A patient's negligence in cooperating with treatment is not the condition the doctor undertook to treat. Thus, some courts take that form of negligence into account. See, e.g., Carreker v. Harper, 196 Ga.App. 658, 396 S.E.2d 587 (1990) (plaintiff's failure to disclose relevant medical information during diagnosis); Fall v. White, 449 N.E.2d 628 (Ind.Ct.App.1983) (plaintiff decedent's failure to disclose medical information and follow his doctor's orders); FDIC v. Ferguson, 982 F.2d 404 (10th Cir.1991) (legal malpractice plaintiff failed to obtain relevant documents); Pizel v. Whalen, 252 Kan. 384, 845 P.2d 37 (1993) (legal malpractice plaintiffs failed to read relevant documents). The distinction is not between a plaintiff's conduct before and after going to the doctor. Pre-relationship conduct could affect the way the doctor renders medical care, such as when a patient negligently loses medical records from a previous treatment. Unless this information was available to the doctor when the relationship was formed, it was not part of the condition the doctor undertook to treat.

This Comment affects only a claim against the doctor (or other service provider). A claim against a tortfeasor whose negligence joined with the plaintiff's negligence to create the medical condition treated by the doctor is reduced by the plaintiff's negligence. The doctor should pay for the plaintiff's share of the injury, but the other tortfeasor should not. Contribution and indemnity are governed by Topic 3, but it should be noted here that it would be unfair to allow the doctor to obtain contribution from the other tortfeasor for the plaintiff's share.

Comment n. Modified comparative responsibility. Under modified comparative responsibility, there is a question whether the plaintiff is barred from recovery when the plaintiff's negligence is equal to or greater than all the defendants or an individual defendant. Only one jurisdiction bars a plaintiff from recovery against an individual defendant when the plaintiff's percentage of responsibility equals or exceeds the percentage of that individual defendant. See Wisc. Stat. Ann. s 895.045 (West 1997). All other jurisdictions bar the plaintiff only when the plaintiff's percentage equals or exceeds the total of all the defendants. See, e.g., Ark. Stat. Ann. s 27- 1764; Rev. Code Mont. s 27.1.702; Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979).

Some courts instruct the jury about the consequences of modified comparative responsibility. See Colo. Rev. Stat. s 13-21-111.5(5) (1989); Haw. Rev. Stat. s 66331(d) (1985); Iowa Code Ann. s 668.3(5) (1987); Minn. R. Civ. P. 49.01(2) (Supp. 1991); Or. Rev. Stat. s 18.480(2) (1991); Wyo. Stat. s 1-1-109 (1991); N.D. Cent. Code s 9-10-07 (1987); Seppi v. Betty, 579 P.2d 683, 692 (Idaho 1978); Reese v. Werts Corp., 379 N.W.2d 1, 3 (Iowa 1985); Thomas v. Board of Township Trustees, 582 P.2d 271, 280 (Kan. 1978); Wing v. Morse, 300 A.2d 491, 501 (Me. 1973); Thurston v. Ballou, 505 N.E.2d 888, 891 (Mass. App. Ct. 1987); Martel v. Montana Power Co., 752 P.2d 140, 146 (Mont. 1988); Roman v. Mitchell, 413 A.2d 322, 327 (N.J. 1980); Schabe v. Hampton Bays Union Free Sch. Dist., 480 N.Y.S.2d 328, 336 (1984); Smith v. Gizzi, 564 P.2d 1009, 1013 (Okla. 1977); Peair v. Home Ass'n of Enola Legion No. 751, 430 A.2d 665, 671-72 (Pa. Super. 1981); Dixon v. Stewart, 658 P.2d 591, 596-97 (Utah 1982); Adkins v. Whitten, 297 S.E.2d 881, 884 (W. Va. 1982).

Comment o. Ameliorative doctrines. When plaintiff's negligence constituted an absolute bar to recovery, some courts adopted ameliorative doctrines or escape devices to forgive plaintiffs of conduct that otherwise would have constituted negligence. Some of these doctrines, including the last clear chance rule, avoidable consequences, and mitigation of damages, depended on the timing of the plaintiff's and defendant's negligence. See s 3, Comment b. Other doctrines, including the availability of plaintiff's negligence as a defense when the defendant acted intentionally, acted recklessly, was grossly negligent, or was strictly liable depended on the nature of the defendant's conduct. Section 7, Comment b, rejects these ameliorative doctrines under comparative responsibility. This Comment makes clear that these ameliorative doctrines are not applicable under modified comparative responsibility.

The rationale for abandoning these ameliorative doctrines is that their primary purpose was to escape the harsh, all-or-nothing effects of contributory negligence. They are no longer needed when plaintiff's negligence merely reduces a plaintiff's recovery. See, e.g., Bieleski v. Schulze, 16 Wis. 2d 1, 114 N.W.2d 105 (1962); Li v. Yellow Cab Co., 13 Cal. 3d 804, 119 Cal. Rptr. 858, 532 P.2d 1226 (1975); Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973); Ratlief v. Yokum, 167 W. Va. 779, 280 S.E.2d 584 (W. Va. 1981). Modified comparative responsibility raises a special problem. Under modified comparative responsibility, plaintiff's negligence can still bar recovery. The ameliorative doctrines might still be useful in avoiding this all-or-nothing result. Nevertheless, this section makes clear that these ameliorative doctrines have been abandoned, even under modified comparative responsibility. The rationale is three-fold.

First, the core case where an ameliorative doctrine was needed was when a plaintiff was only slightly negligent, compared with the far greater culpability of the defendant. By definition, such a case does not arise under modified comparative responsibility, because the plaintiff is barred only when the plaintiff is at least 50 percent responsible.

Second, it would be administratively difficult to retain the ameliorative doctrines to escape the effect of barring a plaintiff without also forgiving the plaintiff of the negligent behavior even when he would still be below 50 percent. A court could ask the factfinder to distinguish among various types of plaintiff's negligence and then forgive the plaintiff of negligence that falls into one of the ameliorative categories only to the extent necessary to avoid barring the plaintiff's recovery, but this would unduly complicate the jury submission.

Third, one of the unspoken rationales for the ameliorative doctrines seems to have been that contributory negligence as an absolute bar was itself an unsound doctrine. It is difficult to conclude that modified comparative responsibility is unsound when it has been legislatively adopted.

For these reasons, this Comment rejects these ameliorative doctrines even under modified comparative responsibility. See, e.g., Bieleski v. Schulz, 16 Wis. 2d 1, 114 N.W.2d 105 (1962); Breen v. Brother Bones Cafe Inc., 1994 WL 583643 (Conn. Super.); Cahill v. Carella, 43 Conn. Supp. 168, 648 A.2d 169 (1994); Hull v. Taylor, 644 N.E.2d 622 (Ind. App. 1994); Cenac Towing Co. v. Richmond, 265 F.2d 466 (5th Cir. 1959); Cushman v. Perkins, 245 A.2d 846 (Me. 1986); Consolidated Freightways Corp. v. Osier, 185 Mont. 439, 605 P.2d 1076 (1979); Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979); Macon v. Seaward Construction Co., 555 F.2d 1 (1st Cir. 1977); Wilson v. Gordon, 354 A.2d 398 (Me. 1976); Mitchell v. Ross, 14 Ohio App. 3d 75, 470 N.E.2d 245 (1984). But see Ellis v. Dalton, 194 Ga. App. 114, 389 S.E.2d 797 (1989).

FNa. As of the date of publication, this Draft has not been considered by the members of The American Law Institute and does not represent the position of the Institute on any of the issues with which it deals. The action, if any, taken by the members with respect to this Draft may be ascertained by consulting the Annual Proceedings of the Institute, which are published following each Annual Meeting.

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