William E. Westerbeke

In Praise of Arbitrariness: The Proposed 83.7 Percent Rule of Modified Comparative Fault

A century ago the common law doctrine of contributory negligence was the universal rule of tort loss allocation in the various states and territories of the United States. The doctrine completely barred a contributorily negligent plaintiff from any recovery against a negligent defendant. Criticism of the harshness of the doctrine led first to an array of exceptions designed to ameliorate its harsh results and then to the gradual adoption of comparative fault. In 1920, Mississippi became the first state to adopt a comparative fault system. At first, other states were slow to follow Mississippis lead, but gradually momentum grew; by the end of the century forty-six states, Guam, Puerto Rico, and the Virgin Islands had all adopted some system of comparative fault. But in devising comparative fault rules, states have created a patchwork of cutoff points at which a plaintiff will be able to proceed with the claim: some below 50%, some at 50%, and some over 50%. The arbitrariness of the chosen cutoffs is reviewed and an equally arbitrary cutoff is proposed.