Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
The reasons of the rule which denies relief to a plaintiff guilty of contributory
negligence have been variously stated. The common law refuses to apportion
damages which arise from negligence. This it does upon considerations of public
convenience and public policy, and upon this principle, it is said, depends also the
rule which makes the contributory negligence of a plaintiff a complete defense. For
the same reason, when there is an action in tort, where injury results from the
negligence of two or more persons, the sufferer has a full remedy against any one
of them, and no contribution can be enforced between the tort feasors. The policy
of the law in this respect is founded upon the inability of human tribunals to mete
out exact justice. A perfect code would render each man responsible for the
unmixed consequences of his own default; but the common law, in view of the
impossibility of assigning all effects to their respective causes, refuses to interfere
in those cases where negligence is the issue, at the instance of one who hands are
not free from the stain of contributory fault, and where accordingly the impossibility
of apportioning the damage between the parties does not exist, the rule is held not
to apply.
“The true ground,” says Dr. Wharton, “for the doctrine is that, by the interposition
of the plaintiff’s independent will, the causal connection between the defendant’s
negligence and the injury is broken.”. . . [But, i]n my judgment no more satisfactory
reason for the rule in question has been assigned than that which assumes it to have
been founded upon considerations of public policy. We need not seek for any better
reason for a rule of law than that, among all the possible rules that might be adopted,
it is plainly the best—that indeed it is the only rule upon the subject for an instant
practicable.
CHARLES FISK BEACH, JR., THE LAW OF CONTRIBUTORY NEGLIGENCE 11-13 (1885).
2. The public policy critique. Are Professor Beach’s policy considerations—when combined
with contributory negligence’s real-world application—convincing? By 1953, their luster had
dimmed to at least some juries and state legislatures. William Prosser, a dean of the torts bar,
wrote:
There has been much speculation as to why the rule thus declared found such ready
acceptance in later decisions, both in England and in the United States. The
explanations given by the courts themselves never have carried much conviction.
Most of the decisions have talked about “proximate cause,” saying that the
plaintiff’s negligence is an intervening, insulating cause between the defendant’s
negligence and the injury. But this cannot be supported unless a meaning is
assigned to proximate cause which is found nowhere else. If two automobiles
collide and injure a bystander, the negligence of one driver is not held to be a
superseding cause which relieves the other of liability; and there is no visible reason
for any different conclusion when the action is by one driver against the other. It
has been said that the defense has a penal basis, and is intended to punish the
plaintiff for his own misconduct; or that the court will not aid one who is himself at
fault, and he must come into court with clean hands. But this is no explanation of
the many cases, particularly those of the last clear chance, in which a plaintiff clearly
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