Comparative Fault Act Summary

Contributory negligence as a defense in a negligence action followed closely on the development of this tort ac­tion, itself. Almost as soon as the defense began to appear, it was criticized for its inherent unfairness. In a negli­gence action, the injured person sues the tortfeasor, the party who injured him or her, for money damages. The injured person must prove that the tortfeasor's negligent conduct produced the injury. The defense of contributory negligence may be raised by the tortfeasor. The tortfeasor must prove that the injured person's negligent conduct contribute~ to some degree, to his or her own injury. If the tortfeasor can prove contributory negligence, of even the slightest mote, he or she will not be liable for anything at all.

It is the absolute effect of the defense that is regarded as unfair. The tortfeasor can be 99% responsible for serious injuries, and the injured person 1% responsible, and the in­jured party will lose 100% or everything. The defense abso­lutely cuts off all the tortfeasor's liability.

A large number of states, England, and Canada have, by statute and by case, replaced contributory negligence with comparative negligence. A comparative negligence approach requires assessment of the percent of responsibility for each party. Each party pays the injured person according to his or her percentage contribution to the injury. If the earlier il­lustration of 9~% and 1% occurs under such a system, the tort­feasor would pay 99% of the total damages, and the injured person would absorb 1% of the loss -that attributable to his or her own conduct. This is a pure comparative negligence approach.

Unfortunately, most states have hybridized the pure com­parative negligence approach by retaining partial contribu­tory negligence. Contributory negligence becomes a complete defense, in these hybridized systems, after an injured person's contribution to his or her own injury equals or exceeds a given percentage. 50% contribution is usually the break-off point. These jurisdictions mitigate the unfair effect of contributory negligence by half, only.

Most of the development of comparative negligence has, also, ignored the problems of torts or injuries based on some­thing other than negligence. If the injured person's conduct is material to the damages he or she receives, should it not also be material when the tortfeasor is strictly liable? Strict liability, for example, has become an important modern tort theory. Yet, negligence only has been the focus of develop­ments pertaining to the injured person's contribution to his or her own injury.

Against this background, the NCCUSL now presents the Uniform Comparative Fault Act. It addresses the controversy of contributory negligence versus comparative negligence, and pure comparative negligence versus modified comparative negli­gence. It goes the necessary step forward in considering all other related subjects, including the relationship of negli­gence to other forms of fault, contribution among joint tort­feasors, and set-offs between contending Claimants.

The Uniform Act takes the pure approach to comparative negligence, but also expands upon it. It provides for compar­ative fault, not just negligence, and includes strict liability, aggravated negligence, breach of warranty, and the like. If an injured person's negligence contributes to his injury, and his action against the tortfeasor is in the nature of strict lia­bility, the injured person would have his or her damages com­mensurately reduced.

The main goal of the Uniform Act is a fair system of com­parative fault. A fair system has to go beyond negligence. It is, also, necessary to carry the notion through all affected aspects of the personal injury action. Each party to the ac­tion, including the injured person, pays according to his or her contribution. Some other issues must be resolved to make the principle wholly effective.

What if an injured person cannot collect damages owed from one of several joint tortfeasors? The common law allowed col­lection from any solvent tortfeasor. In some states, this rule was abolished, and the injured person bore the loss. The Uni­form Act allows the principle of comparative fault to disarm the problem, equitably. The uncollectible award is reallo­cated by the percentages of contribution to injury. The in­jured person shoulders his or her share, accordingly.

Under the common law, a tortfeasor who paid the injured person the uncollected award of another tortfeasor did not have any recourse against the absconding tortfeasor. The Uniform Contribution Among Tortfeasors Act has considerably displaced the common law rule, but its approach to contribu­tion is not compatible with a pure comparative fault system. The Uniform Contribution Among Tortfeasors Act measures con­tribution on a pro rata basis. The Uniform Comparative Fault Act makes each person's equitable share -his percentage of the fault, in essence -the basis for contribution. This conforms to the general policy of pure comparative fault.

Set-offs also offer a problem under a pure comparative fault system. Set-offs occur when two or more persons accuse each other of tortious conduct resulting in injury. For ex­ample, two people collide with their automobiles. Both receive injuries. Both are at fault. They sue one another. A set-off occurs when the damages are awarded. The smaller damage sum is subtracted from the larger sum. The person entitled to the larger sum receives the difference.

Set-offs are a problem when there is liability insurance. Automatic set-offs may give insurers a windfall. If a differ­ence in damages is all that is paid, insurers avoid paying the amounts which their contracts obligate them to pay. The in­sured person does not receive what he or she has paid the insurer to cover.

This is not necessarily an improper result. But automatic set-offs take the power away from the insured to decide how payment shall be made. The Uniform Comparative Fault Act pro­vides that set-offs are not permitted except by the agreement of both parties. The court also has the power to order payment into the court if it appears that one party is not likely to pay his or her obligation. The court can then use insurance proceeds, insofar as possible, to satisfy all obligations. These provisions rectify any problems with insurers because of set-offs, and help ease contribution among tortfeasor prob­lems, as well.

The aim of the Uniform Act is absolute fairness in dis­tribution of damages. Pure comparative fault works fairly and equitably, no matter the number of tortfeasors or injured persons, and no matter how many are both tortfeasors and in­jured persons. It makes each person responsible for his or her own fault-linked injuries. The Uniform Act provides a fair rule administered fairly for all persons.