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

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
with 50 percent recovers nothing at all.’ 22 In effect ‘such a rule distorts the very principle it
recognizes, i.e., that persons are responsible for their acts to the extent their fault contributes to an
injurious result. The partial rule simply lowers, but does not eliminate, the bar of contributory
negligence.’ . . .
We also consider significant the experience of the State of Wisconsin, which until recently
was considered the leading exponent of the ‘50 percent’ system. There that system led to
numerous appeals on the narrow but crucial issue whether plaintiff’s negligence was equal to
defendant’s. . . . Numerous reversals have resulted on this point, leading to the development of
arcane classifications of negligence according to quality and category. . . .
It remains for us to determine the extent to which the rule here announced shall have
application to cases other than those which are commenced in the future. . . [W]e hold that the
present opinion shall be applicable to all cases in which trial has not begun before the date this
decision becomes final in this court, but that it shall not be applicable to any case in which trial
began before that date (other than the instant case)—except that if any judgment be reversed on
appeal for other reasons, this opinion shall be applicable to any retrial. . . .
CLARK, J., dissenting.
I dissent. For over a century this court has consistently and unanimously held that Civil
Code section 1714 codifies the defense of contributory negligence. Suddenly—after 103 years—
the court declares section 1714 shall provide for comparative negligence instead. In my view, this
action constitutes a gross departure from established judicial rules and role. . . .
Notes
1. Courts versus legislatures. Was the California Supreme Court right to think that the
institutional authority to alter the contributory negligence rule properly lay with it rather than with
the legislature? What are the relevant considerations in the question of institutional choice?
2. The Restatement joins in. The above case describes two main kinds of comparative
negligence regimes: a “pure” form and a “50 percent” form. The Third Restatement recommends
the pure form, asserting that where a plaintiff’s negligence is “a legal cause of an indivisible
injury,” courts are to reduce a plaintiff’s recovery “in proportion to the share of responsibility the
factfinder assigns to the plaintiff. RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIABILITY §
7 (2000).
3. Comparing negligence? The Li court raises an interesting question in the course of
adopting a comparative negligence regime: how exactly do we compare one party’s negligent act
22
This problem is compounded when the injurious result is produced by the combined negligence of several
parties. For example in a three-car collision a plaintiff whose negligence amounts to one-third or more recovers
nothing; in a four-car collision the plaintiff is barred if his negligence is only one-quarter of the total.
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