Comparative Fault to the Limits

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4 Scopus citations


Comparative-fault defenses ordinarily raise issues for jury determination. And yet, in a wide array of cases, courts preclude defendants from litigating those defenses. This Article examines the many cases in which courts bar comparative-fault claims. It argues that these court-created limits are not haphazard, but rather grounded in identifiable, consistent, and important normative principles. When these issues of principle or policy arise - in cases involving plaintiff incapacity, structural safety, role definition, process values, fundamental values, and autonomy and self risk - the Article suggests that courts are right to consider limits on comparative-fault defenses. An examination of principles and policies that warrant limiting comparative-fault defenses is particularly important in light of the proposed Restatement Third of Torts: Liability for Physical Harm. The Restatement adopts a broad obligation for plaintiffs to care for self and for others, but expressly permits judges to find that a plaintiff has "no duty" to avoid negligence in special cases of principle or policy. The Article illustrates cases of principle or policy, many parallel to defendant no-duty cases, in which courts appropriately consider no-duty determinations for plaintiffs.

Original languageEnglish (US)
Pages (from-to)975-1045
Number of pages71
JournalVanderbilt Law Review
Issue number4
StatePublished - May 2003

ASJC Scopus subject areas

  • Law


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