34176-qlr_31-4 Sheet No. 40 Side A 12/09/2013 15:27:08 , OBBS (pt.1), EARCH OF OF EARCH 1 S At the core of the 2 ITIGATION OF OF ITIGATION M

A Study of Comparative § 229 (2d ed. 2000) [hereinafter D [hereinafter 2000) ed. (2d 229 § OCTRINES IN IN OCTRINES D 783 783 ORTS T EUNION NTRODUCTION R Yehuda Adar Yehuda ISTER ISTER I. I EGLIGENCE AND AND EGLIGENCE AW OF S L N 11/20/20137:05AM 11/20/20137:05AM HE WO ., T :T (Do Not Delete) Not (Do 2 L.Q. 333, 333 (1932) (calling to abandon the “all-or-nothing” common rule OBBS ET AL OMPARATIVE OMPARATIVE AMAGES C Assistant Professor, University of Haifa, Faculty of Law. For their good advice and and advice good their For Law. of Faculty Haifa, of University Professor, Assistant ]. ]. The expressions “mitigation” and “avoidable consequences” are here used This This article addresses a neglected problem in Anglo-American . Wilson, P. & Lyman Mole Chalmers A. . D D

It is, indeed, a high-sounding phrase which announces that no permitted man to shall base be his recovery upon his own fault . growing feeling . that injustice . is being . worked and that there . . . Yet, are situations there in is a which the plaintiff should not be denied a recovery harm. his contributed to degree appreciable fault some has to merely because his own 1 2 ORNELL ORNELL ORTS mitigation doctrine is the concept that a tort any loss that could victim have been avoided had the may tort victim fulfilled his not or recover for law. Notwithstanding the now unquestionable victory of negligence—also comparative known as comparative fault—over the of the mitigation—also doctrine negligence, old law contributory of doctrine common known as avoidable consequences—remains intact. 17 C interchangeably, as are interchangeably, the fault.” terms and negligence” “comparative “comparative For the sake of consistency, however, for negligence.” “comparative the most part I will use the terms “mitigation” and encouragement, I am grateful to Rabeea Assy, Chapman, Omri Orit Ben-Shahar, Gan, Sirko Jeffrey Harder, Berryman, Michael Bruce Krauss, Nayers, Ronen Andrew Perry, Ariel Porat, Kull, Doug Rendleman, Pietro Douglas Sirena, and Eyal Laycock,Zamir. Valuable Jason which Forum, Discussion Remedies of the Seventh by the participants provided was feedback took place at of Aix-Marseille the III (June seminar University 2011), of the the weekly Department of the University 2012), of and the Pompeu annual conference Fabra of the Israeli learned School have us of so many whom Private from giant, remedies Law our Dobbs, of Dan to Association dedicated is article (May, Law, 2013) Barcelona This (January much. so ADAR FINAL VERSION T of in favor of a doctrine of ). 34176-qlr_31-4 Sheet No. 40 Side A 12/09/2013 15:27:08 A 12/09/2013 40 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 40 Side B 12/09/2013 15:27:08 note note ANUAL M While While 6 supra , 562 (4th ed. ed. (4th 562 ORTS ,T EGLIGENCE EGLIGENCE N ONTRACTS C OBBS AW OF L OMPARATIVE HE 5 Thus, the mitigation doctrine ,T 7 § 918 (1979); D ERILLO ORTS ORTS T M. P OF OF ) note 2, § 229; 1 C note 2,§ 229. How can we explain the persistence of this 8 OSEPH ECOND Westlaw (search “COMPNEGMAN”). supra supra supra supra Although they have developed as separate separate as developed have they Although &J (S 4 , In contrast, negligence iscomparative a defense , 3 ORTS ORTS ,T ,T ALAMARI availableat OBBS OBBS . . § 220. . ESTATEMENT D. C D R D See OHN OHN See id See id See See id See See The The theoretical tension between comparative negligence and the My My decision to look into this question and explore the relationship . At the same time, these two doctrines employ fundamentally . 3 seems seems to thepreserve and rigid now much discredited all-or-nothing loss allocation system employed which however, negligence, contributory unlike negligence; contributory under the has common been abolished law in mitigation defense is still most good law. of Western jurisdictions, the doctrine of aimed aimed at reducing a tort victim’s recovery by a percentage that reflects his or her comparative fault in causing the injury for which he or she is seeking compensation. driven by three basic intuitions. First, the two doctrines are more similar driven intuitions. basic by three the are two similar more doctrines First, than is usually assumed and perform Second, an the essentially similar coexistence function. of these generates a two theoretical doctrines tension deserving in careful doctrine mitigation the modern under approach administered scrutiny. all-or-nothing strict, tort Third, law the must be attenuated to prevent injustice to either victims or injurers. The into athem full- and integrates intuitions basic three these follows article fledged account of negligence the between comparative interrelationship . of and mitigation doctrine of mitigation seems to have been identified by the drafters of all-or-nothing doctrine in the age of comparative responsibility? responsibility? of comparative age the doctrine in all-or-nothing between the doctrines of comparative negligence and mitigation was doctrines, these two rules carry substantial similarities, if only in effect: their both enable a court or jury to reduce the damage award based on part. plaintiff’s the of default kind on some 1998). 1998). different methods when dealing with the victim’s avoidable loss. avoidable thewith different dealing victim’s when methods 5. 4 5. 6. 7. 8. 784 784 her to “duty mitigate.” Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM comparative comparative negligence apportions this loss doctrine between of the mitigation allocates parties, the the loss in its them: entirety either to the only victim one (if of found tortfeasor guilty (if the victim is of not so found). failing to mitigate) or the § 1:1 (3d ed. 1995), 1995), ed. (3d 1:1 § 2, 2, § 229; J 34176-qlr_31-4 Sheet No. 40 Side B 12/09/2013 15:27:08 B 12/09/2013 40 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 41 Side A 12/09/2013 15:27:08 § 3 & & 3 § IABILITY L Surprisingly enough, this this enough, Surprisingly Under a somewhat vague vague somewhat a Under 11 9 PPORTIONMENT OF Under the Restatement’s Restatement’s the Under 10 titute titute a bar to recovering those :A ORTS T OF OF ) note 39. 39. note HIRD 11/20/20137:05AM 11/20/20137:05AM (T infra (Do Not Delete) Not (Do 2 ESTATEMENT R . § 3 cmt. b & reporter’s note. Specifically, the comment notes the following: following: the notes comment the Specifically, note. reporter’s & b cmt. 3 § . See id. See See Id Second, Second, in Part III, the article raises an interesting theoretical The The discussion proceeds in three stages. First, in Part II, I Under Under comparative responsibility, it no longer makes sense to have a [post-accident] plaintiff’s negligence constitute an absolute to failure . . . plaintiff’s A by conduct. that bar caused injuries plaintiff’s the of portion to recovery, even for the mitigate damages damages. . . . should [It] no responsibility.” is longer a cons factor to consider when assigning percentages of 10. For further discussion, see discussion, further For doctrinal dichotomy is still very much ingrained in the Anglo-American legal thinking. The present Article challenges this tradition, asking the reader to acknowledge the similar role played by the two doctrines, and interrelationship. complex their into carefully more to look the need question that has not yet resemblance, been on the addressed, one namely: hand, given and allocating their their avoidable loss, on the other utterly hand, clear do these different doctrines reflect a methods of conflicting set of values? Is a theoretical reconciliation between these nonetheless feasible? As institutions two a first established step towards courts and has not yet been discussed in the academic Article literature. therefore The presents a validity timely and attempt to the assess proposal. normative reform overlooked the appeal theoretical of the Restatement’s somewhat undertake a positive inquiry into the interrelationship between the two doctrines. The aim is to expose the close comparative negligence and mitigation of damages affinity and at the of same time the doctrines of to sharpen the fundamental distinction between them. odd. exerciseseem this may comparative and kind lawyer, of Mitigation To a common comparative negligence have had a separate history in the and have developed as distinct and autonomous legal concepts. This revolutionary revolutionary proposition has escaped American legal community. It has barely been mentioned the by American attention of the Anglo- 9. 9. 2013] 2013] TWO SISTER DOCTRINESthe Third American Restatement of . IN SEARCH OF REUNION 785 ADAR FINAL VERSION 11. (2000). notes reporter’s 11. rule declaring that plaintiff’s negligence are abolished,” the “[s]pecial Reporters have proposed total ameliorative abolition doctrines of for the defining mitigation doctrine. approach, the to approach, to (i.e., failure a mitigate prevent) loss avoidable certain should merely reduce the scope of a tortfeasor’s liability with respect to that loss, rather than eliminate it altogether. Id. 34176-qlr_31-4 Sheet No. 41 Side A 12/09/2013 15:27:08 A 12/09/2013 41 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 41 Side B 12/09/2013 15:27:08 AULT IN F in , This is done done is This 12 having suffered an actual violation, violation, actual an suffered having after 207 (Omri Ben-Shahar & Ariel Porat eds., 2010). 2010). eds., Porat Ariel & Ben-Shahar (Omri 207 A Comparative Fault Defense in Law AW L ONTRACT C Finally, Finally, in Part IV, the normative aspects of the problem are . This Article will not assess the role of either mitigation or negligence comparative 12 MERICAN MERICAN within the law of contract. Nevertheless, its insights may become relevant to contract law, if comparative negligence is adopted as a general presently contract doctrine. the case This, however, in is most not problem, Anglo-American see jurisdictions. Ariel For Porat, a recent analysis of the A answer answer this puzzle by constructing a theoretical integration of the mitigation prima doctrine into the communitarian facie case to enable theory the which supports and argument highlights the normative explains significance of the distinct comparative temporal negligence. stage within which each of the The doctrines operates. During the stage, pre-tort in which comparative negligence dominates, the risk of violation (and injury) has not yet materialized. A victim’s unreasonable failure to avoid injury at this point, though deserving of excusable. censure, may often She be can legitimately rely, at least other people their performing private law to duties toward her. The failure a certain degree, on to take precautionary steps 786 786 answering these questions, I argue that the mitigation doctrine arose out of an individualistic ideology, which put strong emphasis on the need of each individual to care for his own good. clash This philosophy Q with seems U to I N consideration, the N I P which communitarian I A I C values comparative L believe negligence. A W of can In R light E best solidarity ongoing V of I this E account coexistence ideological W and of divergence, for the the mutual doctrines the under mitigation rise the and same of comparative regime deserves an answer. of negligence A major contribution of liability this article is the presents effort to a puzzle that 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM typical typical factual categories in which these concerns are most evident. The main drawback of the doctrine of mitigation is that it prohibits courts in two stages. weaknesses First, of the mitigation I doctrine from the expose perspectives of fairness, in efficiency, very general and terms coherence the with Then, apparent I illustrate these general concerns by taking a closer look at established a few principles of causation. less excusable. Thus, a victim’s negligent “failure to post-tort mitigate” stage must in entail the a qualitatively different legal sanction. That sanction consists of the law’s complete refusal to regard the defendant’s loss. avoidable victim’s of the cause legal a as negligence addressed. The integration thesis which aim was offered in Part II, and by so doing to assess is to the normative strength of the doctrine of examine mitigation itself. the normative appeal of the usually usually accompanied by a perceived injury, is, however, arguably much 34176-qlr_31-4 Sheet No. 41 Side B 12/09/2013 15:27:08 B 12/09/2013 41 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 42 Side A 12/09/2013 15:27:08 11/20/20137:05AM 11/20/20137:05AM (Do Not Delete) Not (Do 2 This Article therefore concludes that, in cases where the failure to tortfeasors. tortfeasors. Finally, reforming the mitigation doctrine these so as normative to concerns avoid will relax produced the by the theoretical coexistence of tension comparative negligence and currently mitigation is reform such turn, In liability. tort of regime single a under damages of expected to strengthen the internal coherence and moral force of Anglo- law. tort American impact impact of tort, but also—at least partially—for the indirect losses which resulted from the victim’s erroneous decision. Such an approach would force potential injurers to internalize the foreseeable risk of error which they impose wrongfully on their thereby enhancing victims, the efficient tortfeasors. of potential deterrence courts juries and anshould innocent represents be misjudgment, mitigate allowed to apportion responsibility for the avoidable loss between parties the on the basis of their comparative fault in about bringing that loss. This solution is preferable to finding the plaintiff not negligent in order rule. this of of the to availability the mitigation The effects harsh escape judicial option will not only prevent injustice to victims, but also to where the victim’s failure to mitigate represents a reckless disregard of the duty to if mitigate—especially the tort was not intentional). Where the victim’s failure to mitigate is merely an innocent mistake, however, some with portion of the share victim the should the avoidable tortfeasor loss occasioned by the wrongdoing. This is appropriate, for one of the direct and foreseeable consequences of any problematic and tort irregular state of is affairs, with the which the creation victim of of the isto cope. tort forced now to Reacting requires a properly situation such a the victim to make a choice, one When the which victim fails in this complex may assignment, and when not this failure always be obvious. does not represent a reckless disregard justifiablemorally to hold of a tortfeasor responsible not only for the direct the duty to mitigate, it is 2013] 2013] TWO SISTER DOCTRINESand juries from in evident is most conduct. This weakness plaintiff’s the of reasonability IN taking SEARCH into cases account where even after any the OF commission of some factor the REUNION control tort, over the the other defendant causal has process leading than to loss. the plaintiff’s the further The same weakness, following the however, tort, only 787 the is party who is able also to mitigate the loss present is the in victim. cases I where argue that even in these majority, the cases, defendant should not automatically be discharged from any which may well be the vast withliability respect to that loss. Such a well discharge may be justified ADAR FINAL VERSION 34176-qlr_31-4 Sheet No. 42 Side A 12/09/2013 15:27:08 A 12/09/2013 42 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 42 Side B 12/09/2013 15:27:08 & , 19 OODS Davies v. W OSITIVE OMPARATIVE P 569 (8th ed. ed. (8th 569 ENRY , C Smith v. Smith Smith H ORTS T The The doctrine was first RITICAL RITICAL Id. see see also , which in a sense mirrors CHWARTZ wrongdoing. Second, :AC 15 . 304 (1950). (1950). . 304 E. S Davies EV ATERIALS ON M L. R Comparative Negligence on the March ICTOR ENT § 463 (1965). The doctrine’s origins are ICHOTOMY §§ 479–80. The doctrine (known also as the .-K , (1809) 103 Eng. Rep. 926 (K.B.). The first or reckless or (1965); 481–82 §§ D , 3 M. & W. 244, 150 Eng. Rep. 1134 (1838) HI 14 ASES AND ORTS NALYSIS 152 Eng. Rep. at 589. 152 Eng. to bar the refused Court The ORTS T ORTS ., C T A T 10 (3d ed. 1996) (citing Walldren Express & Van Co. v. OF OF OF OF OF OF ) ) ) .189, 28C .189, Davies, Davies, EV AULT F RADITIONAL RADITIONAL ECOND ECOND ECOND T L. R (S (S (S ROSSER ET AL Butterfield v. Forrester ENT L. P .-K , 103 Eng. Rep. 926). For discussions of the “” (or HI OMPARATIVE Thus, the defendant was liable for the entire loss. Bridge v. Grand Junction Ry. 7, 119–30, 132–39 (5th ed. 2010). 2010). ed. (5th 132–39 7, 119–30, , C Recognizing the harsh results to which the application of the the of application the which to results harsh the Recognizing ILLIAM ILLIAM ESTATEMENT ESTATEMENT ESTATEMENT 13 , the defendant ran over the plaintiff’s donkey, which had been left with fettered R Id. Third, contributory negligence was no defense where the 16 EERE EVISITING THE EVISITING Butterfield 1. Contributory and Comparative Negligence Negligence and Comparative 1. Contributory Under the common law doctrine of contributory negligence, a . R . W . R . D , 10 M. & W. 546, 152 Eng. Rep. 588 (1842). In 16 14 15 13 EGLIGENCE ETH II. R plaintiff’s claim, reasoning that, notwithstanding the in latter’s the leaving that, negligence reasoning notwithstanding donkey claim, plaintiff’s unattended in the road, the defendant was the one who had the accident. last chance of preventing the mentioned in (citing Krug, 126 N.E. 97 (Ill. 1920) (finding that a negligent truck driver who hit a boy playing ball in a detailed For the streets)). the in play would street children that was possibility not the of disregard allowed “wanton” to raise the defense of contributory discussion negligence due of to this his exception to negligence the rule regimes before and in after the the introduction United of comparative States, see V “last “last opportunity” or “discovered peril” rule) is ascribed to Mann the English case of Butterfield grass. in the road, eating forefeet Mass. (2 Pick.) 621 (1824). For a detailed history of the doctrine and a useful survey of the old cases from which it emerged, see Ernest A. Turk, 28 C 2), & 1 (pts. usually traced back to American case to apply the doctrine of contributory negligence is probably N 788 788 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM B the defense did not inadvertence, the apply defendant had if, a notwithstanding “last injury. clear the chance” to plaintiff’s prevent prior the guilty guilty tortfeasor may be found towards the tort to victim, if it be can be shown that entirely the loss suffered exempt by thevictim from could liability have been conduct. avoided but for the victim’s own careless A. The Dichotomy Traditional and Mitigation between (or Contributory Negligence Comparative) rule rule might lead in many cases, the English courts were quick to graft a number of exceptions onto the basic rule. First, they declined to apply the defense to cases of intentional 1988) 1988) (“It is standard hornbook law tort.”). intentional that contributory negligence is not a defense to an 34176-qlr_31-4 Sheet No. 42 Side B 12/09/2013 15:27:08 B 12/09/2013 42 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 43 Side A 12/09/2013 15:27:08 , ., 19 supra supra .1225 , ALMOND ALMOND EV 18 note 15, at . 939, 943 ,S EV Typically Accountability .L.R EETON EETON ET AL 20 supra supra 265–68 (2d ed. ed. (2d 265–68 CHWARTZ K , .L.R ARV UCKLEY A AGE note 15, at 12–29. 12–29. at 15, note . For the role of the jury , 53 H Id 21 , 47 L CHWARTZ supra &R.A.B , —and the “last clear chance” OMPENSATION C Contributory Negligence as Defense EUSTON CHWARTZ note 2, at 503–04; Dobbs, § 483 (1965); W. P ORTS AND 565–80 (5th ed., student ed. 1984) [hereinafter [hereinafter 1984) ed. student ed., 565–80 (5th ,T Davies v. Mann ]; R.F.V. H supra supra ORTS ] (“Under the rule of contributory negligence ] you the negligence (“Under rule of contributory note 15, at 9. Towards the end of the nineteenth , T ORTS OBBS T .105 (1948). (1948). .105 486–88 (21st ed. 1996); S 1996); ed. (21st 486–88 . § 11-7-15. The developments are well documented in in documented well are developments The 11-7-15. § . note 1,at 333; S EV William L. Prosser, Prosser, L. William OF OF ORTS ) NN B. D supra supra A ORTS , fault.”). , T AW OF T .L.R 11/20/20137:05AM 11/20/20137:05AM AN L supra supra his The Rationale of Last Clear Chance ODE OMPENSATION ECOND EERE INN Accountability OBBS Accountability and Comparative Fault (S .C ,C AW OF , D &D ISS L See generally See 32 M 32 OBBS ]. ]. (Do Not Delete) Not (Do OODS 2 EETON ON THE See, See, e.g. K Finally, where rejecting the plaintiff’s claim seemed too Mole & Wilson, Wilson, & Mole W EETON ESTATEMENT 17 See See &K EUSTON ON THE The common denominator of all of these exceptions was that they . The first federal law to incorporate a rule of comparative negligence was the . R . . Dan B. Dobbs, H 21 17 18 19 ROSSER ROSSER AND ROSSER to Violation of Statute, of Violation to could make the injured plaintiff accountable for his own misbehavior . . . . for his own misbehavior find could Or you accountable plaintiff injured the make could a way to duck the bar accountable. of contributory negligence The . . . plaintiff recovered . all But damages, you escaped in all liability never in spite of spite held of both his parties fault, or the defendant doctrine—was doctrine—was not causation but rather the slightness of plaintiff’s defendant). of that negligence compared to 163–77. For an illuminating and thorough analysis of the early cases employing the doctrine, doctrine, the cases employing of early the analysis thorough and 163–77. an For illuminating see Malcolm M. MacIntyre, harsh a result, some courts simply held that the negligence. plaintiff’s contributory as regarded to be serious not sufficiently default was note 15,at 8–9. Federal Employers Liability was reform legislative a such adopt to Act state first The (2012)). 51–60 §§ U.S.C. 45 at amended of 1908, Pub. L. M 1910. in Mississippi No. 60-100, 35 Stat. 65 (codified as the the literature. AND was was charged with full responsibility for the plaintiff’s avoidable loss. each led to the imposition negligence, contributory of doctrine Under the loss. avoidable plaintiff’s of full liability on the it had defendant to be for either the defendant or the the plaintiff—but never both—who century century a clear trend of some courts was of a negligent. question whether had contributorily been plaintiff to allow the jury wide discretion regarding the in softening the hardship of the contributory negligence defense, see also S (1940) (claiming that the true rationale of 20. 20. “discovered peril”) doctrine, its rationale, and its relevance under contemporary regimes of regimes under contemporary and its its relevance rationale, doctrine, peril”) “discovered comparative negligence, see D 2013] 2013] TWO SISTER DOCTRINES defendant had violated a standard fixed by statute, if the statute intended to provide special to protection persons like the victim against their own IN SEARCHmistakes. OF REUNION 789 ADAR FINAL VERSION (1987) (1987) [hereinafter Dobbs, P 1993) 1993) [hereinafter D P through through legislative intervention, and in some cases through the initiative of the courts, a negligence”—was more flexible doctrine—“comparative law. tort into introduced Anglo-American gradually Wide Wide discontent with this all-or-nothing approach led the vast majority of Anglo-American jurisdictions, throughout the twentieth century, abandon contributory to negligence in its original strict form. 34176-qlr_31-4 Sheet No. 43 Side A 12/09/2013 15:27:08 A 12/09/2013 43 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 43 Side B 12/09/2013 15:27:08 . A cf. 843 , 40 L 57 & n.3 A Uniform Comparative 220, 220–22 220–22 220, § 3 (2000); (2000); 3 § EFORM EGLIGENCE N IABILITY Contributory Negligence Contributory Negligence L .J.L.R ]; ]; John W. Wade, ICH .§ 1-1-109(a)–(d) (1977)). (1977)). 1-1-109(a)–(d) .§ ]. An example of a bold judicial § 1(a) (using the term “comparative “comparative term the (using 1(a) § NN ONTRIBUTORY CT . A A :C , 10 U. M AW TAT PPORTIONMENT OF Such apportionment is carried out out carried is apportionment Such L AULT .S 23 F :A , 256 N.W.2d 400, 403 (Mich. 1977). 1977). (Mich. 403 400, N.W.2d 256 , ., Schneider Nat’l Inc. v. Holland Hitch Co. YO ORT ORT A Survey and Analysis of Comparative Fault in T ORTS Comparative Negligence T See, See, e.g § 1(a), 12 U.L.A. 125 (1977) (stating that a claimant’s claimant’s a that (stating (1977) 125 U.L.A. 12 1(a), § OF OF ) CT OMPARATIVE A Kirbyv. Larson HIRD .C Uniform Comparative Fault note note 1. For a more recent report see John W. Wade, (T NIFICATION NIFICATION OF NIF AULT U F , U .L.J. 563 (1982). A vast majority of states, however, have been much much been have however, states, of majority vast A (1982). 563 .L.J. in supra supra , ISS a plaintiff’s negligence would not routinely exempt a a exempt routinely not would negligence plaintiff’s a E.g. 22 ESTATEMENT , 52 M OMPARATIVE . 299 (1980) Wade, [hereinafter note 19; Olger C. Twyner, III, Under the modern doctrine of comparative negligence, which . R . The terminological gap has a fairly simple explanation. In England, which most damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable regard having to the claimant’s share in the responsibility . . . . damage the for Where Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that shall damage not be defeated by reason of the fault of the person suffering the damage, but the .C The terms “comparative negligence” and “comparative fault” are often used used often are fault” “comparative and negligence” “comparative terms The EV 23 22 NIF decision substituting comparative negligence Supreme Court’s for decision in contributory negligence is the Michigan Negligence—Its Development in the and Its Present Status in Louisiana, (1977) [hereinafter Wade, community to community keep using the old with expression no substantial risk the of confounding new doctrine with the old one; in the United common States, law however, was the gradual, process lengthy, of and abolishing it the terminological olddistinction. is On this not point see W.V. yet Horton Rogers, complete. This necessitated under English a Law clear commonwealth commonwealth countries naturally followed, the transformation from the old common law doctrine to the new legislative rule was abrupt and general in its scope. This enabled the legal U outside outside of the negligence,” United States still retains the label “contributory Comparative Comparative Fault Act—What Should It Provide? negligent negligent defendant from all liability. Rather, such negligence merely grants the Court or avoidable loss between the parties. jury the authority to apportion the plaintiff’s supra supra Mississippi 790 790 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM (U. Magnus & M. Martín-Casals eds., Martín-Casals M. & (U. Magnus 2004). L. R slower to adopt comparative negligence, and most had not done so until the 1970s. A detailed detailed A 1970s. the so until done not had and most negligence, comparative adopt to slower discussion of the early development of comparative negligence in American by Mole & law Wilson, is provided fault” fault” to denote “comparative negligence” throughout the Act). Some courts and legislators, however, have offered responsibility between a a wrongdoer and her distinction victim, whereas responsibility comparative for under fault the apportions plaintiff’s which loss among contribution between tortfeasors). a comparative plurality of negligence wrongdoers (in W (citing 1992) (Wyo. the n.4 & 566 apportions561, P.2d context of Id. Id. interchangeably. contributory fault “diminishes proportionately the amount awarded as compensatory damages damages as awarded the compensatory amount proportionately fault “diminishes contributory for an injury attributable to the claimant’s fault, contributory but does not bar recovery”). A Negligence) (Contributory Reform Law in the English the by was adopted formulation similar Act,1945, 8 9& Geo. 6, ch. 28, §1(1) (Eng.): by by determining an equitable proportion (usually reflects the a relative responsibility of each percentage) of the which parties for causing the 34176-qlr_31-4 Sheet No. 43 Side B 12/09/2013 15:27:08 B 12/09/2013 43 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 44 Side A 12/09/2013 15:27:08 27 . §§ NN .1913, 28 The The A EV 25 William L. ODE L. R .C § 2(b). This This 2(b). § See note 15,at 4. CT ISS OWA OWA A supra supra , 77 I , . AULT F § 668.3(3) (1997). Indeed, the the Indeed, (1997). 668.3(3) § CHWARTZ ODE S C . 465, 465 n.2 (1953) [hereinafter Prosser, . Prosser, 465, 465 [hereinafter n.2 (1953) at 33–34. If, however, the plaintiff’s fault fault plaintiff’s the however, If, 33–34. at that that misconduct had on the the on had misconduct that that OMPARATIVE at 34. The “fifty percent” rule is the most most the is rule percent” “fifty The 34. at OWA OWA EV Id. see also Id. ., I .C .L.R E.g NIF , 135 (codified, as amended, M amended, as , 135 (codified, note 13, at 189. 189. at 13, note 24 ICH note 15, at 33–34. It was first introduced by New AWS .L . The first to adopt this regime was Mississippi. Act of supra Tanberg v. Ackerman Inv. Co Inv. Ackerman v. Tanberg 51 M Id The The “forty-nine percent” rule is today the law in 12 states ISS causal causal impact supra 11/20/20137:05AM 11/20/20137:05AM , note 15,at 4. note 15,at 32–34. Under this model, which is known as Id. Rethinking the Treatment of Mitigation of Damages Under the Iowa ]. ]. supra supra supra supra , , CHWARTZ manifested by the misconduct of each of the parties—i.e., parties—i.e., the of each of misconduct the by manifested (Do Not Delete) Not (Do 2 Of these states, twelve have embraced a “pure” regime, regime, “pure” a embraced have twelve states, these Of 26 note 1, at 339; Turk, Turk, 339; at 1, note at 32, 62–64. The “pure comparative negligence” states are Alaska, , California, Alaska, are states negligence” comparative “pure The 62–64. 32, at CHWARTZ CHWARTZ S Id. Comparative Negligence, supra As of today, only four American states—Alabama, Maryland, . John R. Grier, . . “In determining the percentages of fault, the trier of fact shall consider both the 25 27 24 Prosser, Prosser, April 16, 1910 , ch. 135, 1910 M , Kentucky, Louisiana, Michigan, Mississippi,, Missouri,and . New Mexico, New York, nature of the conduct of each party at fault and the conduct extent of the and causal relation the between the damages claimed.” U Comparative Fault Act in Light of formulation formulation was adopted by some states. Hampshire in 1969, and was followed by Connecticut, Delaware, , Illinois, Indiana, other other forty-six states negligence. have adopted some form of comparative 1918 & n.57 (1992) n.57 & references); 1918 judicial (citing 26. 26. 2013] 2013] TWO SISTER DOCTRINESrelevant loss. That relative responsibility is, in turn, determined by the combined IN weight of SEARCH two degree of fault factors: first, OF the relative—comparative— extent the the of from norm deviation of and reasonableness; the second, REUNIONrelative—comparative— extent. its on and loss plaintiff’s 791 ADAR FINAL VERSION Comparative Negligence term term comparative negligence (or doctrine. the under out carried comparative apportionment the in fault) factor causal the capture has been criticized for its failure to North Carolina, Virginia—and the District of Columbia still adhere to the original common law version of contributory negligence. “modified “modified comparative negligence,” a comparative fault flexible of the parties apportionment becomes possible of only if the defendant’s contributory fault loss outweighs or at least equals that ofthe plaintiff. based on the under which a flexible division of responsibility is always allowed. Thirty-three Thirty-three states employ intermediate or “modified” regimes, culpability. of level victim’s on the depending apportionment which allow 28. S Wilson, 28. 11-7-15 11-7-15 (1972)). Pure negligence comparative is also embodied in various federal , the most well-known of which is the Federal Employers’ Liability Act of 1908, to Pub.injuries at (covering § 53 45 as (2012)) U.S.C. L.amended § 100, 3, 66, 65, 35 (codified Stat. No. 60- all by 1945 since adopted was regime “pure” A industry). railroad interstate the in employees common law jurisdictions outside the provinces. Mole all asCanadian as well New Zealand, and Australia, Ireland, Northern United States, including England (and Scotland), & equals or outweighs apportionment is allowed. the fault of the defendant, the latter escapes liability and no including: including: Arizona, Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Dakota, Tennessee, Nebraska, Utah, North and West Virginia. popular regime. S 34176-qlr_31-4 Sheet No. 44 Side A 12/09/2013 15:27:08 A 12/09/2013 44 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 44 Side B 12/09/2013 15:27:08 31 OF OF ) REGOR The AW OF G 30 HIRD C , L (T ESTATEMENT ESTATEMENT ESTATEMENT , M OBBS itigate, itigate, the plaintiff REGOR B. D G C ESTATEMENT AN M This article focuses focuses article This 1478–79 (H.G. Beale et al. al. et Beale (H.G. 1478–79 32 1D note 31,at 381. . 967, 967 n.2 (1983) (“The EV ARVEY See See of the doctrine is the case case contracts the is doctrine the of The Mitigation Principle: Toward a supra supra , § 350(1) (1981); R (1981); 350(1) § ONTRACTS .L.R C A §918(1965);R N at 33. 33. at O , [1912] A.C. 673 (H.L.) (appeal taken from EMEDIES Id. ORTS ORTS 383 (2d ed., unabr. ed. 1993) [hereinafter [hereinafter 1993) ed. unabr. ed., (2d 383 R ONTRACTS , 69 V T C HITTY locus locus classicus OF OF ) § 3 (2000). (2000). §3 OF OF ) A somewhat different modified system applied in South ESTITUTION NABRIDGED NABRIDGED ]. ]. ECOND 33 -R IABILITY (S Id. note 3, at 562 (alteration in original) (quoting R (quoting original) in (alteration 562 at 3, note ,U ECOND L (S § 350(1)). The The 350(1)). § QUITY OBBS supra EMEDIES , -E R § 918(1). “The law does not permit the wronged party to recover those those recover to party wronged the permit not does law “The 918(1). § , Charles J. Goetz & Robert E. Scott, The doctrine is comprised of three different rules. The The rules. different three of comprised is doctrine The ESTATEMENT ERILLO 29 ONTRACTS ORTS AMAGES R T 235–36 (18th ed. 2009); 1 C 1 2009); ed. (18th 235–36 C ESTATEMENT &P See See, See, e.g. :D NABRIDGED OF OF OF PPORTIONMENT OF OF PPORTIONMENT ) ) , U :A 2. Mitigation of Damages ofDamages 2. Mitigation The doctrine of mitigation, known also as the “avoidable . . Put differently, these costs are regarded by the law as a foreseeable and thus a . For this threefold taxonomy see, for example, H AMAGES 33 31 32 D ECOND ECOND OBBS ALAMARI EMEDIES ORTS General Theory of Contractual Obligation compensable compensable consequence of the defendant’s wrong. consequences” consequences” doctrine, is an established principle in the common law of damages. first rule states that a defendant is not liable towards a plaintiff for any loss resulting from the defendant’s wrong (be it a contract) if the tort plaintiff could and or should have avoided that a loss. breach of ON expectation interest—but no more. In contrast, the rule denying compensation for avoidable T (S (S R Iowa, , , Montana, Nevada, New Jersey, and Carolina, South Texas, to Wyoming, , Pennsylvania, which in joined , Oklahoma, Oregon, 1971 (altogether 21 states). 29. 792 792 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM Dakota, under which comparative negligence defendant. the applies of that to compared when slight only if the plaintiff’s negligence was 30. R 30. doctrine of avoidable consequences,damages for which losses precludes which an mitigation he principle.”). injured reasonably The party centrality could of from the have its relative to first theoretical independence the second and third rules. recoveringThe ruletwo latter rules derive avoided, may be best is explained by the referencenaturally to centerpiece from of the the basic principle that compensation is aimed at fulfilling the plaintiff’s D (fourth) (fourth) rule, under which if damages are reduced due to a failure be should credit allowed for costs she the to have would hypothetical had incurred she executed m her duty to mitigate. 1 D eds., 29th ed. 2004). Dobbs accepts this tripartite classification but offers an additional exclusively exclusively on the first rule, which is universally perceived as the most three. the of fundamental to demand reimbursement attempting for to mitigate (whether any or not such reasonable attempt was successful). cost incurred while second rule, which is a corollary to the first, recognizes a plaintiff’s right second right a is to recognizes rule, a the plaintiff’s first, which corollary Under the third rule, if the plaintiff succeeds in a mitigating certain loss, then the damages should be reduced accordingly. damages that ‘could have C [been] avoided without undue risk, burden, or humiliation.’” British British Westinghouse Co. v. Underground Rys. Eng.). 34176-qlr_31-4 Sheet No. 44 Side B 12/09/2013 15:27:08 B 12/09/2013 44 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 45 Side A 12/09/2013 15:27:08 37 HE It It ORT note T 34 ., T The The 35 supra supra note 32, at 36 , NABRIDGED NABRIDGED ,U 806–21 (3d ed. note 32, at 266. § 3 (2000). (2000). 3 § 122–28 (3d ed. ed. (3d 122–28 supra supra EETON ARPER ET AL OLOWICZ ON OLOWICZ , . 132, 133 (1969). Legal Remedies for OBBS supra supra &J EV &K A. (Michael 1885–87 V. H , IABILITY ONTRACT REGOR ONTRACTS L 311–22 (rev. ed. 2005); 5 5 2005); ed. (rev. 311–22 C G ORTS C .L.R T ,C REGOR INFIELD ROSSER ROSSER OWLER RK G C Mitigation Mitigation of Damages—Effect of ,W , 4 F 4 , §§ 859, 1041 (Lord Mackay of of Mackay (Lord 1041 859, §§ ]. “While the doctrine of mitigation of mitigation ]. doctrine the “While ONTRACTS REACH REACH OF C .175(1996). .175(1996). B e.g. , 23 A , OGERS 241–54 (1964); 3 D 3 (1964); 241–54 note 32, at266–72. EV on the expectation interest. For a critique critique a For interest. expectation the on ARNSWORTH INDSELL ON R F See Living Without the Avoidable Consequences NGLAND ]; ]; E. Allan Farnsworth, OLOWICZ PPORTIONMENT OF E L. R nvolving tort appeared only from time to time. &L supra supra , :A &J LLAN ORBIN ON ORTS ORTS AND The doctrine should therefore be IEGO limitation ONTRACTS T §§ 334–47 (2003). For an English perspective see, see, perspective English an For (2003). 334–47 §§ , C LERK . 1145, 1183–99 (1970). For an English perspective, 38 D note 32, at 1478–88; M C ORTS T REGOR AWS OF EV ONTRACTS AN L G INFIELD C OF OF ,C S supra supra ) ’ 33 S 33 Damages , 11/20/20137:05AM 11/20/20137:05AM .L.R PERILLO . D ORBIN ON HIRD note 33,at 176–77. EMEDIES FOR .2 (T , C OLUM UR ,R ALSBURY .J supra supra JOSEPH JOSEPH A ARNSWORTH M ORBIN , 70 C note 31, at 127–53; E. A (Do Not Delete) Not (Do C § 3 cmt. a. a. cmt. 3 § 2 URROWS 310–16 & nn.26–39, 344–47 (2d ed. 1986); P 1986); ed. (2d 344–47 nn.26–39, & 310–16 Kelly, Kelly, B ESTATEMENT supra supra INTON For authoritative discussions of the current status of the doctrine in American R See id. See , ORTS L HITTY ON CONTRACTS T In In contrast to contributory negligence, the mitigation doctrine was A striking development in the history of the doctrine took place in 458–59; 458–59; 22 A . NDREW NDREW 35 RTHUR RTHUR EMEDIES AW OF for for example, 12(1) H Doctrinein Contract Remedies, 17, at occupies occupies a central position within the law of contract damages. Breach of Contract the Third Restatement on the Apportionment of abolish Liability the proposed mitigation to of damages doctrine from the face of tort law. the year 2000. Under a somewhat vague ameliorative doctrines for defining plaintiff’s negligence” are abolished, rule declaring that “special A 36. “In earlier days cases of mitigation i mitigation of cases days earlier “In tort). and contract both 235–84 (covering 36. Today they are quite common and cover a wide field.” M Clashfern ed., 4th ed. reissue 1998); C originally developed in developed the context originally of for actions of breach contract. principle, principle, however, was soon absorbed into where the it is frequently relied upon law by defendants in of their efforts to curtail torts as well, plaintiffs. injured towards damages in liability their of the scope Treatments of the role of mitigation in tort law have usually been relatively concise compared context. contractual the in discussions parallel to L M 2010); ed. 20th eds., al. et Jones 37. 38. R consequences is generally perceived as a perceived is generally consequences 34. 2013] 2013] TWO SISTER DOCTRINES IN SEARCH OF REUNION 793 ADAR FINAL VERSION of this common understanding and an interesting attempt to reconcile the mitigation rule with the expectation principle, see Michael B. Kelly, “Most “Most of the authorities on the ‘duty’ to mitigate relate to breach of contract, but the to are applicable tort.” broad equally principles W.V.H. application application to the law of torts as well.” John C. Everett, Plaintiff Choosing Among Reasonable Alternatives of damages developed in the law of contracts, the courts had little difficulty in extending its contract contract law, see 11 2004); 2004); C see see A 1999) 1999) [hereinafter F 762 762 (16th ed. 2002) [hereinafter W According According to the Reporters, under a regime comparative of tort liability negligence in which plays consequences doctrine, such which provides an a all-or-nothing rule, superfluous pivotal is both and role, problematic. the avoidable 34176-qlr_31-4 Sheet No. 45 Side A 12/09/2013 15:27:08 A 12/09/2013 45 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 45 Side B 12/09/2013 15:27:08 , 39 , S.C. AYDEN T. H ESTATEMENT ESTATEMENT ESTATEMENT ESTATEMENT ESTATEMENT See, e.g. AUL &P It has not been been not has It OBBS OBBS . Section 918 is therefore 40 B. D ORTS T AN OF OF ) (2000). (2000). titute titute a bar to recovering those THIRD ( IABILITY IABILITY L ESTATEMENT ESTATEMENT 267–68 267–68 (4th ed. 2001), in which the authors point out the over- ), however, there is no doubt that section 918 of the R the of 918 that doubt is section no there ), however, HIRD PPORTIONMENT OF which have been superseded, § 918 (“avoidable consequences”) was not was in fact repealed. repealed. fact in was (T :A ORTS ORTS OMPENSATION T T ORTS § 3 & cmt. b & illus. 4 & 5. Especially illuminating is the Reporter’s Note to to Note Reporter’s the is illuminating Especially 5. & 4 illus. & b cmt. & 3 § C T Id. OF OF OF ) ) OF OF ) First, First, as a historical fact, contributory negligence and mitigation of Anyone Anyone looking into the vast body of literature and case law 3. Mitigation of Damages Dichotomy Under-Researched versus Comparative Negligence: An ESTATEMENT Under comparative responsibility, it no longer [post-accident] makes negligence sense constitute to an have absolute to a failure . . . plaintiff’s A by conduct. that bar caused injuries plaintiff’s plaintiff’s the of portion to recovery, even for the mitigate damages damages. . . . should [It] no responsibility. is longer a cons factor to consider when assigning percentages of HIRD ECOND ECOND . § 3 reporter’s note cmt. b. Interestingly, unlike other sections of the R ORTS ORTS AND officially still in force, and it is frequently & Son, Inc. 19, Johnson 779 v. Morris, N.W.2d 29 (Wis. 2009).Ct. App. relied the text of Reading upon by American courts. R the Id (S (S T (T 39. 39. : b: comment 794 794 absorbed into the doctrine Q U I N of N I P I A C comparative L A W R E negligence. V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM explicitly replaced by the R 40. The sole exception of which I am aware is D is aware am I which of exception sole The 40. strictness strictness of the mitigation rule, making explicit reference to section 3 of the R here. here. damages were developed by the common law courts as independent relating relating to the doctrines in Anglo-American law question treats mitigation will and comparative immediately negligence (or discover contributory that negligence, where is still applies) as legal institutions. two utterly Notwithstanding distinct the stark similarity between Anglo-American lawyers them, seem to perceive comparative or contributory negligence on the one hand and mitigation of damages on the other as two legal phenomena which have little or nothing to do with each other. Consequently, the interrelation between investigated. the two doctrines Furthermore, is questioned courts rarely the justification for and maintaining the commentators between these two traditional legal concepts. distinction have Several factors seem to be involved rarely considered considered in the academic routinely. the doctrine apply and recognize literature, and the Courts continue to Notwithstanding Notwithstanding its revolutionary nature, this proposal has hitherto been completely ignored by the legal community. 34176-qlr_31-4 Sheet No. 45 Side B 12/09/2013 15:27:08 B 12/09/2013 45 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 46 Side A 12/09/2013 15:27:08 45 REATISE 43 ,AT Comparative Comparative 42 EDGWICK 982 (11th ed. 2003). 2003). ed. (11th 982 S , which is so deeply ONTRACT HEODORE C note 45 and accompanying text. accompanying and 45 note note 16 (treating comparative negligence infra AW OF L on the part of the plaintiff. the of the part on supra supra iling iling to mitigate from actually helping to bring HE , ,T fault fault or negligence This method of classification is so , that is, a nonfeasance. note 14, at 560–84. 560–84. at 14, note note 1, at 333–35; T 46 This functional distinction, which made REITEL on the plaintiff. on thecontrast, theof plaintiff. context in In T 44 supra 295–337 1891). ed. (8th supra supra 11/20/20137:05AM 11/20/20137:05AM ., OMPENSATION active conduct active ,C UENTER AMAGES G OBBS D IR failure to act S , D (Do Not Delete) Not (Do ROSSER ET ET ROSSER AL 2 . (distinguishing the faulty fa As such, they were given different names. To a large duty to mitigate duty 41 , P Mole & Wilson, & Mole See e.g., See, E.g. See id See, e.g. EASURE OF OF EASURE M The The dichotomy between the principles of mitigation and . . see presumption, this of critique the For . 43 44 46 about the loss, which under tort law is called contributory negligence). negligence). contributory called is law tort under which loss, the about sense when contributory negligence continue even was today, after the a advent of comparative negligence. total It defense, strongly is reflected in the methodology of many torts seems textbooks. In these to texts, analyses of contributory or comparative negligence are most often included in chapters dealing with general defenses to tort liability. negligence, on the other hand, is more susceptible to being understood as understood as to being susceptible is more the hand, other on negligence, of kind some implying 41. 41. 42. 45. 2013] 2013] TWO SISTER DOCTRINES legal rules. IN SEARCH OF REUNION 795 ADAR FINAL VERSION ON THE ON THE extent extent this may be explainable by the negligence fact that, has whereas contributory always been developed and considered is a studied mainly tort used to describe doctrines of the each terminology within the distinct Moreover, the doctrine, context mitigation of contract law. carries different semantic content, and thus sends messages. different normative For example, the mitigation principle is often a perceived imposing as negligence—and negligence—and its modern successor often comparative portrayed as negligence—are legal defenses mitigation to of an damages action is in traditionally affecting only the tort. size of the remedy to be perceived awarded once the question of as Conversely, a rule of liability damages, has been settled. comparative comparative or contributory terminological. negligence These doctrines is are radically actually not, different understood however, as roles playing merely within the law of tort. Contributory to any kind of “duty” or obligation of the plaintiff towards the defendant. the defendant. towards plaintiff the of or obligation of “duty” kind to any Then again, the language of contributory contributory (or comparative) negligence no explicit reference is made Mitigation, Mitigation, in contrast, is typically discussed under which separate headings deal with damages. ingrained ingrained in the concept of fault, as it comparative is often called), is negligence absent from the jargon used (or in the context comparative of mitigation. Finally, under mitigation the plaintiff’s default is usually described as a 34176-qlr_31-4 Sheet No. 46 Side A 12/09/2013 15:27:08 A 12/09/2013 46 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 46 Side B 12/09/2013 15:27:08 & 48 A. note note AW OF L ASES supra supra ICHARD ENDLEMAN HE , Finally, :C R 50 ,T Likewise, in in Likewise, Carol A. Mutter, Mutter, A. Carol OUG 49 OLOWICZ URPHY EMEDIES See R M &J OHN OHN &J INFIELD INFIELD 103–16 2010)ed. (8th (classifying MERICAN MERICAN A , the effect of the doctrine on other tort RAZIER B 47 ATERIALS ODERN ODERN 336–53, 790–91 (8th ed. 2004) (classifying &M ,M inter inter alia ARGARET ORTS note 15,at 94–95. T ASES : C AYCOCK note 15, at 112–13 (referring to a plaintiff’s negligence L supra supra , Among the hundreds of articles which have have which articles of hundreds the Among supra supra 51 note 46, at 288–318, 790–91 (making no mention of mitigation EERE EMEDIES , OUGLAS OUGLAS , R ATERIALS ON &D supra supra , D , &M OODS CHWARTZ OBERTS S W 67–93 (4th ed. 2010) (classifying avoidable consequences under “Limits on PSTEIN ASES L. R See See See See, See, e.g. ,C (10th ed. 1999) (classifying contributory negligence under “Defences to negligence” negligence” to “Defences under negligence contributory (classifying 1999) ed. (10th To illustrate the point, the two major American monographs on The terminological variance and “geographical” separation which . . . E . A representative example is a lengthy and widely cited article on comparative . APRICE 48 49 50 51 47 ATERIALS PSTEIN ORTS doctrines, such as , remoteness, joint and several of liability, damagesetc. was Mitigation not discussed nor mentioned throughout the article. case, case, as in under-researched. borderland this left separation others, the semantic and methodological tradition comparative negligence of barely mention doctrine. In one of these sources, the doctrine is mentioned only once. the mitigation of damages characterize characterize the traditional treatment of these doctrines had may such not an impact have on the mindset of common lawyers, had effort sufficient been invested in the study of however, have been their rare, and have not interrelation. attracted much attention. In this Such efforts, negligence, in which the author examines, Damages” but no discussion of contributory or comparative negligence); D and mitigation under “Defences and remedies”). remedies”). and “Defences under mitigation and under “defenses” and avoidable consequences under “adjustments in damages”); R T &C 796 796 entrenched that it sometimes leads treatment remedies of comparative experts negligence from to their textbooks, exclude presumably any on the basis of the questions. remedial than rather liability assumption that Q the U I doctrine N involves N issues I P of I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM E M 36, at 318–36, 762 (same). (same). 762 318–36, at 36, contributory or comparative negligence). negligence). comparative or contributory which increased his initial injury). avoidable avoidable consequences under “Limitations on Damages recovery” but no discussion of comparative comparative negligence under “plaintiff’s elements “recoverable of damages”); conduct” and M avoidable consequences under two two well-known general texts on discussed the separately, with no law mention of their of close affinity. torts, the doctrines are discussed discussed in tandem. in the numerous articles and essays which have rarely examined have them, very comparative negligence and mitigation of damages been In In the other, the possible convergence of mitigation negligence with comparative under some critical analysis. any by followed but not was out, pointed comparative fault statutes was summarily while discussing contributory negligence and vice versa); W 34176-qlr_31-4 Sheet No. 46 Side B 12/09/2013 15:27:08 B 12/09/2013 46 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 47 Side A 12/09/2013 15:27:08 53 HE , 57 note ., T supra supra , PEISER ET AL EDGWICK note 47, (observing that ” S M. S supra , TUART . 272 (1980). (1980). 272 . The Case for Judicial Adoption of , 323 N.E.2d 164, 167–68 (N.Y. 1974. 1974. , (N.Y. 164, 167–68 323 N.E.2d . 295, 309–15 (1980). Mitigation and AW 3 S 3 L AYCOCK EV L AME note 17, at 458 (mentioning the apparent D see see also at 300. ompare Id. OTRE OTRE supra Spier v. Barker , , 32 S.C. L. R , 56 N EETON 11/20/20137:05AM 11/20/20137:05AM &K , 294–298 (2008) (expressing , the that view doctrine 294–298 the (2008) (expressing mitigation note 36, at 344–345; ORTS T The Seat Belt Defense: A Comprehensive Guide for the Trial Lawyer and and Lawyer Trial the for Guide Comprehensive A Defense: Belt Seat The 52 ROSSER (Do Not Delete) Not (Do 2 P often produce results that closely resemble other. each resemble that closely results often produce supra supra . 199 (1990). (1990). . 199 AW OF L EV with note 33, at 266–77, and Jerry J. Phillips, Admittedly, Admittedly, a text writer may occasionally acknowledge— . For c explicit acknowledgement, . As far as I am aware, the only two journal articles which include a critique of the .L.R 53 52 MERICAN MERICAN ENN Comparative Fault in South Carolina 41, 41, at 300 (emphasis contributory added). negligence “defeats the action itself” In while the his comparative only negligence the scope of view, the plaintiff’s limits recovery. however, the doctrines differ in that the doctrine under a sub-heading in a chapter on havecontributory negligence implicitly other authors acknowledged seem to the Harper close et affinity al., between the doctrines under discussion. resemblance and stating that the doctrines should be distinguished on the basis of the different different basis of the on the be distinguished should doctrines the that stating and resemblance time phase in which each of them applies). By considering the avoidable consequences presumed presumed analytical distinctions between mitigation and contributory negligence are Kelly, supra is “[c]losely related to, negligence.”). but clearly Interestingly, more than a distinguishable hundred years ago, that Theodore from, Sedgwick “[t]he commented application the of the doctrine doctrine of contributory of consequences negligence and contributory of that of avoidable accident—negligent conduct. Regardless, before the advent of comparative negligence, some negligence, conduct. of the advent before comparative Regardless, accident—negligent to as so mitigate to failure a as negligence contributory of kind this treat to willing were courts avoid the harsh results of finding the plaintiff to have been contributorily negligent—one of the first cases was to use this technique Along with the gradual abolishment of contributory negligence in most jurisdictions, however, courts—in both “pure” and “modified” jurisdictions—have become less inclined to embrace the mitigation approach, finding it either analytically useful or introduction normatively to unappealing. the complex For issues a arising Guldenschuh, inNote, these cases see, for example, Courts the for Approach DavidSuggested F. comparative negligence are often mentioned in tandem in cases and articles dealing with what what with dealing articles in cases and in tandem mentioned are often negligence comparative are known as “seatbelt cases”; these are not true mitigation cases, however, but rather they are contributory or comparative negligence cases involving pre-accident—rather than post- A Moving Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee T 2013] 2013] TWO SISTER DOCTRINES studied the doctrines of comparative (or contributory) their negligence role IN and in tort law, SEARCH systematic examinations of between the interrelationship these doctrines OF and rare. extremely REUNION the doctrine of mitigation have been 797 ADAR FINAL VERSION explicitly explicitly or implicitly—that the two doctrines are largely similar. the doctrines of contributory and comparative negligence are “closely related” to mitigation of of to mitigation related” are “closely negligence comparative and contributory of doctrines the damages) These recognitions, however, are of or of degree, its resemblance, this of rarely, source the of examination careful if ever, accompanied by raise. might it questions the normative a 34176-qlr_31-4 Sheet No. 47 Side A 12/09/2013 15:27:08 A 12/09/2013 47 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 47 Side B 12/09/2013 15:27:08 ANDBOOK ON THE ,H ORMICK C C , § 918, cmt. a (“[C]ontributory T. M ORTS T note 41, at300. OF OF HARLES ) supra supra ., ., C , ECOND (S See, See, e.g EDGWICK At first sight, this description may seem perfectly 54 ESTATEMENT 127 (1935); S (1935); 127 ., R See, See, e.g AMAGES D At At first, we must remove a fundamental and yet very common 1. Contributory a Difference? without Distinction Negligence and Mitigation of Damages: Notwithstanding the different A terminology used to describe these As As we have just seen, contributory and comparative negligence are . 54 AW OF negligence either precludes recovery or damages. is On no the defense other at hand, the all applies rule only to to stated the diminution a of in damages thisand claim not Section to for the [i.e.,existence of compensatory avoidablea This cause is consequences]of an action.”). entrenched distinction. L claims claims that contributory negligence essentially identical doctrines. this isclaim Understanding a crucial step and mitigation of damages in the are critical assessment of the negligence. comparative relationship between mitigation and mistake regarding the presumably doctrines distinct within tort law. role played As mentioned earlier, by whereas eachnegligence contributory is treated as a defense complete to in liability tort, mitigation of the is considered a remedial rule, which affects recovery. plaintiff’s merely the scope of the contributory contributory negligence as opposed to comparative negligence? I seek to provide an answer by comparing the various features of the doctrines in question. As we shall later see, this positive analysis is necessary if one wishes to understand and evaluate the normative entail. negligence and comparative of mitigation questions the coexistence which two common law doctrines inclination and to regard despite them the as two scholarly independent and doctrines, this judicial article 798 798 Revisited Dichotomy B. The Traditional perceived in Anglo-American tort law as two clearly separate doctrines; Q U I we N have N also I seen, P however, I that several A scholars C have the acknowledged strong L resemblance A between W these doctrines. R E only V Is external I this E and resemblance W superficial or To what distinct? more or similar more does doctrines these Are similarities? it reflect important substantive extent does the answer depend on whether mitigation is compared to 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM their their application, this similarity traditional between the two account doctrines. conceals Thus, it is the prone to substantive create the sound; however, a more careful examination reveals that it is misleading. is misleading. it that reveals examination careful a more however, sound; It is misleading, because by emphasizing only the diverse end-results of 34176-qlr_31-4 Sheet No. 47 Side B 12/09/2013 15:27:08 B 12/09/2013 47 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 48 Side A 12/09/2013 15:27:08 57 . 491, 491, . EV see also see after a legal a after legal .L.R note 17, at 458 HI C his In contrast, to supra supra Yazoo & M.V.R. Co. Co. M.V.R. & Yazoo 56 , , 68 U. 68 , after after EETON see also defendant’s wrong has been been has wrong defendant’s &K ”) ”) (first added); emphasis Ostrowski . before ROSSER ROSSER note 40, at 795 (“Courts and writers have often . Defendant is not liable for any damage note 14, at 525 (“This rule denies recovery for any damages supra supra 11/20/20137:05AM 11/20/20137:05AM , 58 supra supra with it.”) (second emphasis added); added); emphasis (second it.”) with ., § 497 (rev. ed. 1988) (“Contributory negligence occurs either before a defendant’s wrongful a wrongful conduct defendant’s doctrine . . . . limits consideration of a plaintiff’s fault to the time time the to fault plaintiff’s a of consideration limits . . . . doctrine note 32, at 87 (“[G]enerally speaking, contributory negligence arises AYDEN The Mitigation Distress Damages of Emotional notes 29–30 and accompanying text. text. accompanying and 29–30 notes &H after after , Del Tufo v. Twp. of Old Bridge, 685 A.2d 1267, 1282 (N.J. 1996) (“The (“The 1996) (N.J. 1282 1267, A.2d 685 Bridge, Old of Twp. v. Tufo , Del (Do Not Delete) Not (Do supra the completion of the tort, or at least coincide with it. 2 , Damages D concurrently OBBS ROSSER ROSSER ET AL . 2 . isIt accepted the tothat universally “duty arises only mitigate” D See, e.g. See, See supra See REGOR 195 So. 489, 490–91 (Miss. 1940); Munn v. Southern Health Plan, Health Inc., Southern v. Munn 1940); 489, (Miss. 195 So. 490–91 F.Supp. 719 55 UR , G precede hasbeen committed by defendant.”)(emphasis added). .J If If this assertion were correct, then why does contributory In In fact, both contributory negligence and mitigation of damages . . . P C . the completion of a legal wrong against the plaintiff, that is, in the the in is, that plaintiff, the against wrong legal a of completion the M 58 55 56 57 v. Fields committed or committed (“The rule of avoidable consequences comes into play after alegal wrong has occurred . .. .”); A 22 at the time of or before the P defendant’s wrong.”); avoidable avoidable consequences period that begins v. Azzara, 545 A.2d 148, action 152 when (N.J. the 1988) injured (“Contributory party’s negligence, carelessness occurs however, comes into negligence negligence preclude liability, whereas mitigation reduces of its scope? damages The answer merely to this question is fairly of and mitigation negligence law contributory common under that recalls simple, if one damages each apply in a different time-phase. mitigation As mentioned denies earlier, recovery for any wrong. loss resulting from the defendant’s emphasized emphasized that avoidable consequences rules come into play after the plaintiff’s injury . . . .”); M avoidable avoidable consequences generally arise after the wrongful act of the defendant.”); or at the time of the wrongful act or of the defendant. On the other hand, the 2013] 2013] TWO SISTER DOCTRINES impression that since the effect of radically their IN different application (i.e., in defeat SEARCH most of cases the is damages), action, versus then reduction OF the of case. the not is the however, This, different. fundamentally nature REUNION of the rules themselves must apply also 799 the same be basic rule: caused by his wrongful conduct, if the plaintiff could and should damage that suffering avoided have ADAR FINAL VERSION 497 (2001) (“Mitigation deals only with .”). . . . accrues the plaintiff’s conduct which could have been avoided by reasonable conduct on the part of the plaintiff wrong after context of a tort action, only once the tort is complete. be considered contributory negligence, a must plaintiff’s relevant conduct on numerous occasions. on numerous This This temporal mitigation borderline of damages has been between recognized and applied by contributory the judiciary negligence and Eugene Kontorovich, 34176-qlr_31-4 Sheet No. 48 Side A 12/09/2013 15:27:08 A 12/09/2013 48 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 48 Side B 12/09/2013 15:27:08 note 46, at 530 If, however, we we however, If, supra supra 60 , MURPHY by by the very same working & BRAZIER BRAZIER note 14, at 563 (“The avoidable-consequences rule becomes supra supra ., On the other occurs negligence to hand, prior contributory 59 , bar P’s right to damages for the initial injury caused by the ROSSER ROSSER ET AL This practical difference in outcome, however, is not a result of any any of result a not is however, outcome, in difference practical This In In the context of a tort action in negligence, in which contributory Take, Take, for example, the common situation where P, a pedestrian, . P . injury. initial his and P’s neglect between link causal no is there words, other In 59 60 material after plaintiff has been injured.”); allocating allocating loss between a faulty defendant and a careless plaintiff. Both apply apply contributory negligence to P’s pre-accident self-negligence (i.e., the failure to notice D’s principle car), this will, accident, since that contributory negligence. injury As a corollary, P will lose her cause would of action not in negligence have against D, and occurred will be denied but recovery initial not loss only for but for for the any P’s consequential loss she accident. the of result may have suffered as a substantive difference in method or in approach to the problem of (“[C]ontributory negligence is concerned with a has he . . . negligence occurred has damage after ofdamage; some of theoccurrence the by matured plaintiffhas action before the cause of duty to take careto mitigate hisloss.”). established. (as well as comparative) negligence cause is of action most is complete frequently only once referred, the plaintiff the has recoverable sustained loss. some This flows inevitably from the fact that causation of recoverable loss is an indispensable element of the cause negligence. This means of that the doctrine action of mitigation may apply—and in bar the recovery of avoidable loss—only losses with respect to sustained any by further the recoverable plaintiff loss—only after she after had suffered the an tort initial of negligence has been will not affect P’s right to since her claim neglect did not in any way affect that injury. compensation for her initial injury, the culmination of the defendant’s breach of duty in an initial loss to the plaintiff. Therefore, in a negligence claim, contributory negligence will not only preclude the plaintiff’s right to recover damages for her initial liability. from entirely the defendant exempt but will loss, and, crosses the failing street to inattentively notice driving, D’s careless is injured by D’s car. Assume further that P’s neglect soon to see after a doctor the accident results negligence post-accident P’s to principle in mitigation the Applying injury. a serious aggravation of his will initial preclude P’s right to damages foravoided had any P loss visited a that doctor could sooner; P’s have post-tort been neglect, however, 525, 527–28 525, 1989). Miss. (N.D. 800 800 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM 34176-qlr_31-4 Sheet No. 48 Side B 12/09/2013 15:27:08 B 12/09/2013 48 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 49 Side A 12/09/2013 15:27:08 supra supra 64 itself. itself. pre-tort eliminates note 52, at 309–11 nnot be distinguished supra supra , 545 A.2d at 158 (“[T]here Phillips, Phillips, Ostrowski Id. See also not defeat the cause of action note 2,§§ 1, 479–82. 11/20/20137:05AM 11/20/20137:05AM conduct will, in certain cases, not only affect the the affect only not cases, certain in will, conduct supra supra , On the other hand, the principle applying mitigation 62 ORTS 63 post-tort dependent upon the causation of any actual injury to the the to injury actual any of causation the upon dependent —applying contributory negligence to a plaintiff’s plaintiff’s to a negligence contributory —applying (Do Not Delete) Not (Do ,T 2 61 not OBBS recovery for avoidable losses, mitigation in fact D To conclude, contrary to its widespread image as a rule that merely The misleading nature of the conventional distinction here when when they are factually linked to the defendant’s wrongful conduct. In this very important respect, the mitigation doctrine is doctrine identical of contributory to negligence: both the have the effect of completely barring the plaintiff from recovering any damages whatsoever, if those damages could have been avoided by differently, the contributory negligence and exercise mitigation of of damages are due two care. parallel Put but identical doctrines of case. a torts of stages in different it apply but principle, substantive tort law: they lay down the same reduces altogether the right of a plaintiff to recover for any such losses, even scope scope of the damages awarded the plaintiff, but might defeat the entire action. of cause to a plaintiff’s 61. As well as actions for breach of contract, which is a wrong actionable per se. se. per actionable wrong a is which contract, of breach for actions as well As 61. 62. , etc. trespass, 2013] 2013] TWO SISTER DOCTRINES to norm the namely, substantive implement this problem, same doctrines that no INone should be compensated SEARCH for loss he could avoided. and should have The OF different reflection of the temporal which the borderline common law REUNION of torts had outcome of their in question. doctrines the drawn between application is merely a 801 discussed is clearly revealed if liability is one considers tort actions plaintiff. In in torts which are actionable which per se—, , ADAR FINAL VERSION 64. Interestingly, academic acknowledgement of this striking similarity between the the between similarity striking this of in acknowledged acknowledgement been have academic to seems This Interestingly, 63. almost or recovery no have will plaintiff the . where . . avoidance or mitigation of cases be can no recovery.”) 64. doctrines of contributory negligence and mitigation of damages is in Kelly, doctrines appears these between extremely distinction functional of the critique powerful rare. The most note 33, at 266–67. Kelly criticizes the “mechanical habit of treating contributory negligence as a bar to the action” as recovery for being any avoidable element of of loss. “superficial nature,” given that if all not of that most, claimed and the doctrines mitigation between distinctions proposed the also (criticizing denies them disappear on closer analysis). In Phillips’ view, the doctrines “ca lack lack of care will prevent her from claiming compensation for any loss she could have avoided, but will remedies—aninjunction, be to entitled other may plaintiff the Therefore, nominal damages, or even cases. appropriate disgorgement and punitive damages in 34176-qlr_31-4 Sheet No. 49 Side A 12/09/2013 15:27:08 A 12/09/2013 49 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 49 Side B 12/09/2013 15:27:08 § § See See ...... supra supra , undue ORTS T OF OF faulty faulty and ) ORMICK C C ECOND , M (S in refusing or failing to take take to failing or refusing in This often under- often This See, e.g. such such loss.”) (emphasis added). 66 failed to minimize the loss.”) § 463 cmt. b.cmt. § 463 is language Similar § 350(1), to describe the failure to ESTATEMENT ORTS R T at 131 & nn.15–21. Needless to say, say, to Needless nn.15–21. & 131 at literature. literature. unreasonable id. the the similarities in the doctrines and their OF OF ) Id. Cf. unreasonably see see ONTRACTS ONTRACTS C actively increasing ECOND (S OF OF a judgment that plaintiff was negligent a plaintiff judgment that ) 65 . iliation.” iliation.” note 14, at 525 (“[D]efendant must prove that plaintiff’s under the circumstances, that is, is, that circumstances, the under ECOND (S supra supra .” Ridley v. Safety Kleen Corp., 693 So. 2d 934, 942 (Fla. 1997) ., ESTATEMENT . at 311. The failure to notice the between striking the resemblance ong been recognized in the R Id prevented the diminution of his injuries.”) (emphasis added); Kelly, Kelly, added); (emphasis injuries.”) his of diminution the prevented economic loss” and “ and loss” economic , from a social point of view. unreasonable ESTATEMENT ROSSER ROSSER ET AL P purpose and effect Second, under both doctrines, the plaintiff’s conduct must be At At first blush this conclusion may seem surprising or even odd to a To begin with, compare the nature of the conduct triggering the note 33, at263 (“The avoidable consequences doctrine importsnegligence principles by passively suffering 65. Admittedly, a failure to mitigate will often take the form of a nonfeasance (e.g., (e.g., nonfeasance a of form the take often will mitigate to failure a Admittedly, (emphasis added). The Court referred to comparative negligence, but negligence. contributory to the relevant more even statement seems 65. failure to follow medical advice following an accident, failure to repair etc.). damaged property, It can, however, also example, a negligent attempt manifest to treat a itself wound or to stop a through fire, leading to augmentation an of the active initial injury. This has deedl of imprudence —for unacceptable essential 66. The Restatement defines contributory negligence as conduct involving an involving conduct as negligence contributory defines Restatement The contributory negligence can take the form of a nonfeasance—for example, a injury. personal failure against protection to provide to use meant device a safety 66. considered considered 918 918 cmt. c (“[I]t is only when he [the plaintiff] is action to prevent further loss generally that his damages are curtailed.”) (emphasis added). (emphasis added). added). (emphasis mitigate: “damages are not recoverablewithout undue risk, for burden lossor hum that the injured party could have avoided emphasized emphasized resemblance was acknowledged in the clearest manner by the Supreme consequences operates as well as a type of negligencecomparative . . . it Court of requires the jury to first make Michigan: “The concept of avoidable an omission, by which the herself harm to of plaintiff causation in some way participates in the common common lawyer accustomed to thinking of contributory negligence and mitigation of damages as two independent legal phenomena. The same conclusion is further reinforced, however, doctrines. two the if of features characteristic one considers the other defense of contributory negligence with the conduct giving rise to avoidable the consequence doctrine. The close affinity First, here under both is doctrines, the threefold: relevant conduct can be either an act or distinction sometimes makes it difficult to in in logic or in policy.” doctrines was noted by the Florida Supreme Court, which opined that “[t]his chronological 802 802 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM risk of harm to oneself. to harm of risk For examples falling into the last category, see note 54, at 127 (describing “ mitigation as a rule aiming to discourage people from both used by the R unreasonable unreasonable conduct supra limiting damages only when the plaintiff 34176-qlr_31-4 Sheet No. 49 Side B 12/09/2013 15:27:08 B 12/09/2013 49 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 50 Side A 12/09/2013 15:27:08 , ) ECOND see see also see see also (S ngness to ESTATEMENT ESTATEMENT ESTATEMENT R had adopted the . 1397, 1403 (2009) ORTS ORTS EV ESTATEMENT T see also OF OF ) HIRD (T 89 B.U. L. R § 3 (2000). The comments to this section, section, this to comments The § 3 (2000). against the imposition of liability liability of imposition the against § 477(1) (“The burden of establishing the the establishing of burden (“The 477(1) § ORTS ESTATEMENT ESTATEMENT IABILITY The Puzzling Doctrine of Contributory Negligence T L OF OF ) . § 3 cmt. a. Id 11/20/20137:05AM 11/20/20137:05AM ECOND (S note 15, at 8. With respect to mitigation, see, for example, Mark P. a a complete defense . 1693, 1732 (1995) (noting “the courts’ greater willi PPORTIONMENT OF OF PPORTIONMENT To be sure, applying this standard to the causation of of causation the to standard this applying sure, be To EV supra supra , Kenneth W. Simons, 68 , :A (Do Not Delete) Not (Do 2 L. R 69 ORTS ESTATEMENT 70 T See, See, e.g. § 464 (1965). (1965). 464 § A Theory of Self-Help Remedies in Contract CHWARTZ OF OF ) Third, the standard of conduct in light of which the plaintiff’s Then Then again, notwithstanding the different terminology surrounding . R . Kirby v. Larson, 256 N.W.2d 400, 419 (Mich. 1977) (emphasis added); . “[T]he standard of to conduct which [the actor] for conform must his [or her] own . ARDOZO ORTS 70 67 68 69 T HIRD 67 16 C the subjective preferences or the preferences the traits of subjective peculiar the at specific plaintiff hand when deciding whether negligence. or not he or she is guilty of self- risk risk to oneself would typically give rise to more lenient demands those than which could be expected from people whose carelessness harm others. might This difference, however, is taken into account under both doctrines in much the same way, namely, by giving some allowance to protection protection is that of a reasonable man under like circumstances.” R however, make it clear that conduct creating risk to oneself is examined under a more be of lenientconduct the risk to others—whether creating conduct to applies that which than standard plaintiff. the of or defendant the conduct conduct is to be assessed seems to be identical. standard This is the objective of the circumstances. reasonable man, situated in the same set of (“[T]he duty to mitigate is unlike the duty of proper is by caredetermined a subjective standard: in taking an actor negligence. with all of .his . . or her [W]hetherpeculiar an action preferences is . . . .”). Interestingly, the R Gergen, (T 2013] 2013] TWO SISTER DOCTRINES.” IN SEARCH OF REUNION 803 ADAR FINAL VERSION plaintiff’s plaintiff’s contributory negligence rests upon the defendant.”) OF OF position position that the applicable as of negligence it negligence. is examination R an standard comparative under ordinary for judging negligent conduct is the same under each of the doctrines, most of their characteristics seem to be identical. They provide both for losses that could have been avoided had the plaintiff not been self- negligent. The procedural corollary of defendant, this rather classification is than that the the pleading plaintiff, and proving is both charged contributory negligence with damages. and the mitigation of burden of individualize individualize the ‘objective’ text of Ellerman negligence Lines, for Ltd. victims v. than The for Presidentstandard of injurers”); what Harding,reason requires of 288the injured party is F.2d lower than 288, in other S law.”); branches 290 of the (2d Cir. 1961) (“The Coker v. Abell-Howe Co., 491 N.W.2d 143, 149 (Iowa 1992) (“Like contributory negligence, avoidable consequences is the review of the reasonableness of .”). . . . interests the own his for care to plaintiff’s duty plaintiff’s the conduct examine . doctrines . Both . . 34176-qlr_31-4 Sheet No. 50 Side A 12/09/2013 15:27:08 A 12/09/2013 50 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 50 Side B 12/09/2013 15:27:08 , supra supra ., URRAY M A. J. Kerr, 411 (1993). 411 Y ’ . 1161, 1163–64 1163–64 . 1161, L.J.306 (1981). OL EV note 41, at 336 (“It DWARD .P ARPER ET AL E UB .L.R FRICAN supra supra ee ee generally Mitigation Mitigation of Damages in OHN OHN , UL J . 398, 399 (1989); Jeffrey K. 73 73 T .J.L.&P EV , 98 S. A S. 98 , EDGWICK ARV see see also If such a duty existed, the the existed, duty a such If 71 § 4. This, however, has not always been a a been always not has however, This, § 4. , 16 H , 105 L.Q. R IABILITY L Recent Recent Misinterpretations of the Avoidable Consequences In Hohfeldian terms, the defendant is granted granted is defendant the terms, Hohfeldian In note 33, at 967 (“Generations of legal commentators have Some Fundamental Some Legal Fundamental As Conceptions Applied in Judicial 74 note 54, at 128. 799 (7th ed. 2001); Michael G. Bridge, Bridge, G. Michael 2001); ed. (7th 799 supra Indeed, it is widely accepted that, entrenched as it supra supra 72 , Damages, Mitigation, and Good Faith PPORTIONMENT OF OF PPORTIONMENT L.J. 16, 32 (1913) (“‘A duty or a legal obligation is that which one ought :A ALE ALE ONTRACTS ORMICK 73 C C ORTS C T , 23 , 23 Y M Wesley Wesley N. Hohfeld, OF OF ) Saúl Litvinoff, Litvinoff, Saúl Yet, in a different and wider sense, both contributory negligence Another Another consequence of characterizing both doctrines as legal . To be sure, an act of self-negligence might well amount to a violation of the . & Scott, Goetz 72 73 74. HIRD URRAY ON defendant defendant would be entitled to a legal remedy for correlative right the by the violation plaintiff. This, of however, is his clearly not the case: The victim of a tort can never be held liable towards the defendant (or anyone else) for merely contributing to her own loss mitigate or that for loss. failing to Contract Contract and the Meaning of Avoidable Loss and mitigation do indeed seem to impose a legal duty—the duty to take reasonable measures to avoid causing self-harm. To be sure, that duty of the duty. the performance enforce to right a correlative create does not Nonetheless, it is a public legal duty, the violation of which subjects the plaintiff to a legal sanction. The sanction is the “disability” to recover compensation for any loss sustained as a result of failing to perform the duty to avoid self-harm. observed that the term ‘duty’ is misleading . . . . [T]he failure to mitigate merely ‘disables’ the injured party from recovering avoidable losses.”); injurer’s right in the strict sense, as where the plaintiff’s negligence also harmed the injurer or the injurer also harmed the plaintiff’s negligence where as strict sense, in the right injurer’s of doctrine the of either for application the is a a however, not This, party. third precondition mitigation or that of contributory negligence. expression. may be in legal discourse, the phrase “duty to mitigate” is a misleading freedom from contributory negligence negligence from and freedom contributory on mitigation the plaintiff. H universally accepted rule. Certain jurisdictions used to impose the burden of proving both Riffer & Elizabeth Barrowman, Rule: The “Duty” To Mitigate and Other Fictions defenses defenses is that neither of them imposes a duty or an obligation, in the strict Hohfeldian sense, on the plaintiff. note 36, at 347–52 (regarding contributory negligence); S 71. 71. (T 804 804 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM M Reasoning or or ought not to do.’”) (quoting Lake Shore & M. S. R. Co. v. Kurtz, 37 App. 1894)). N.E. 303, 304 (Ind. (1999) (1999) (claiming that under Louisiana civil law, a correlative right in duty the defendant and to deriving from the mitigate duty to does perform obligations in exist, good creating a faith). But see has been repeatedly held that the burden of proof is always on the defendant to prove that the plaintiff might have reduced damages.”). A question may arise, however, as to who carries the burden of establishing Proof of Onus the Concerning the Problems Loss: of Mitigation extent of the avoidable loss. s 34176-qlr_31-4 Sheet No. 50 Side B 12/09/2013 15:27:08 B 12/09/2013 50 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 51 Side A 12/09/2013 15:27:08 L. of of supra supra ., note 17, at LANVILLE ”) (emphasis supra supra , ROSSER ROSSER ET AL P ility” ility” to for recover EETON &K see also 281–91 (1951). : In this very specific sense, note 16, at 525 (expressing the view ROSSER ROSSER 75 are are in reality the same. note 33, at 263–65. Kelly even goes a P . at 265. supra supra Id , EGLIGENCE supra supra N see also 77 76 EUSTON Maricopa County Maricopa is really an application of the broad principle ille ille Williams. In his magisterial work on concurrent &H ex rel. ONTRIBUTORY 11/20/20137:05AM 11/20/20137:05AM C note 71, at 55–58 (“[I]mmunity is the correlative of disability disability of correlative the is (“[I]mmunity 55–58 at 71, note ALMOND supra by an injured motorist or passenger. It is pure sophistry to declare declare to sophistry pure is It passenger. or motorist injured an by it fixes the penalty for nonuse as reduction of the amount of damages damages of amount the of reduction as nonuse for penalty the fixes it ORTS AND T (Do Not Delete) Not (Do doubt that of Glanv 2 OINT Law v. Superior Court , J See See Hohfeld, To conclude, contrary to a widely entrenched view, not only are Interesting Interesting as it may be, the study of the interrelation between 2. The Fundamental Difference between Comparative Negligence and Mitigation . Interestingly, accessions to the thesis advanced in this section were made by . The interpretation offered here finds support in the dissenting opinion of Justice [T]he “duty,” if it can be so called, is not one for which a right of action is given if is it a is can be of “duty,” given for not action one which [T]he so right called, against the person who violates it. damages for The losses penalty . . . . [T]he is person wronged merely [the plaintiff] the should not disallowance be spoken of of as under a “duty” to avoid damage, but rather under a “disab loss. avoidable Despite the court’s claim that nonuse of a seat belt is not a question of duty . . . this decision imposes upon all motorists and passengers of and belts, seat this state the duty to wear to be recovered that the decision today does not impose a specific duty on all to make use of seat belts. 77 76 at 128 (citing Rock v. Vandine, 189 P. 157 (Kan. 1920)); ILLIAMS inability to recover for those damages.”). damages.”). those for recover to inability note 14, at 525 (“The so-called duty to mitigate damages in tort law actually is merely an preeminent tort scholars. preeminent S Holohan in mitigation of damages and contributory negligence similar, identical doctrines. truly in essence but they are both contributory negligence and mitigation of damages impose a true victims. tort potential on duty legal W 75. 75. 2013] 2013] TWO SISTER DOCTRINESa right of asimmunity against the plaintiff. IN SEARCH OF REUNION 805 ADAR FINAL VERSION contributory contributory negligence and mitigation is Article, not instead the my main goal goal between of is this mitigation to and explore comparative and negligence. assess the Nevertheless, interrelations the (‘no-power’), and the opposite, or negation, of liability.”). liability.”). of negation, or opposite, the and (‘no-power’), Id. 459 459 (concluding their brief contributory treatment negligence and of avoidable consequences the subject added). The by most detailed analysis of the between and negligence interrelation contributory stating that “the mitigation doctrines is of no causes he discusses the presumed and differences that concludes the only clear is distinction the temporal one, which in turn he as criticizes being very difficult to justify. G 755 755 P.2d 1135, 1147 (Ariz. 1988) (emphasis added). A powerful statement of the argument made by Justice Holohan is provided by Kelly, step further and defines the defendant. the against a“wrong” negligence—as breach of the “duty to mitigate”—as well as contributory that that “[t]he duty to mitigate damage contributory negligence”) (emphasis added); (emphasis negligence”) contributory 34176-qlr_31-4 Sheet No. 51 Side A 12/09/2013 15:27:08 A 12/09/2013 51 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 51 Side B 12/09/2013 15:27:08 In In 79 78 This resemblance has has resemblance This 80 Contributory or Comparative: Which . 41, 41–42 (2003). (2003). 41–42 . 41, EV .U.L.R LL I , 24 N. , 24 note 28. See supra notes 59–60 and accompanying text. text. accompanying and 59–60 notes Christopher J. Robinette & Paul G. Sherland, See supra See If If comparative negligence and contributory negligence differ is the Optimal Negligence Rule? Negligence Optimal is the at different temporal stages—then the comparative inevitable result negligence must and be that methods mitigation of loss allocation. of Indeed, this damages is exactly what the is case. apply often assumed Contrary by toboth distinct commentators and courts, mitigation of damages is much more akin to comparative negligence. contributory negligence True, these than doctrines it resemble each is other that in to their application (at least in a negligence case) will lead not to ordinarily the defeat of the plaintiff’s cause typically of action; affect instead only they the both scope of recovery. mainly in their approach to the negligent allocation defendant and a of negligent avoidable plaintiff, and loss if, as between contributory argued above, a negligence and mitigation identical doctrines which employ the same of loss allocation mechanism— damages are in essence 78. 78. 806 806 preceding discussion is a crucial step in our effort to achieve that goal. The only significant distinction between contributory comparative negligence negligence lies in and the different method they apply for allocation the Q of U I N approach allocates and an all-or-nothing applies negligence Contributory avoidable N I P loss I A C the between loss Leither to the Ainjured plaintiff or Wto the defendant plaintiffs in its Rentirety, E whereas V and comparative I negligence E allows W courts defendants: and juries to the apportion loss suffered by the plaintiff the plaintiff. by suffered harm the for causing responsibility relative between the parties, based on their 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM misled both courts and commentators damages into is believing a that form mitigation of of of and the victim a tortfeasor between losses of apportionment a victim’s comparative negligence, which allows for an all all other relevant respects, contributory negligence seem to be identical: negligence being an outgrowth of its and common law comparative predecessor, the latter is triggered by the same kind of used conduct which to trigger the former—plaintiff’s Another important ofcorollary faulty the outgrowth of comparative negligence causation of self-harm. from contributory negligence is that, like its predecessor, comparative self-negligence. post-tort to than rather to pre-tort applies negligence 79. 79. 80. This, however, is only partially true in jurisdictions which have adopted a a adopted have which jurisdictions in true partially only is however, This, 80. “modified” regime of comparative negligence. negligence of the plaintiff is found In to be greater (or even equal) to thatof the defendant, these it will systems, if action. entire the bar the contributory 34176-qlr_31-4 Sheet No. 51 Side B 12/09/2013 15:27:08 B 12/09/2013 51 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 52 Side A 12/09/2013 15:27:08 . EV See, See, or in L. R Comparative avoidable avoidable note 52, at 314–15, who argued supra the same type of judgment and and to eliminate the defense of of defense the eliminate to and Nelson v. Concrete Supply Co., 43 S.C. F. Patrick Hubbard & Robert L. Felix, Felix, L. Robert & Hubbard Patrick F. note 78, at 42. 42. at 78, note supra see see also 11/20/20137:05AM 11/20/20137:05AM avoidable consequences operates avoidable as consequences well as a type of comparative (Do Not Delete) Not (Do ...... the jury ascertains the proportion to which plaintiff’s fault 2 which operate under comparative negligence already operate in our state state our in operate already negligence comparative under operate which 81 82 Thus, Thus, while both contributory negligence and mitigation of This resemblance the This between is however, resemblance doctrines, only external This fundamental difference can difference This be fundamental by elucidated to reference two The concept of negligence contributed to the injury . . . machinery . In this extent. limited a to way, South Carolina . . . already has a limited rule of comparative faultconsequences in its doctrine avoidable . . . . acknowledge this The fact only consequences question and principle is of take whether comparative appropriate the fault negligence. contributory steps courts will to extend the ”) (emphasis added). The same misconception is sometimes shared by the judiciary. , Kirby v. Larson, 256 N.W.2d 400, 419 (Mich. 1977). In that case, the court discussed the the discussed court the case, that In 1977). (Mich. 419 400, N.W.2d 256 Larson, v. Kirby , at 314–15 (emphasis added); (emphasis added). (emphasis negligence negligence and mitigation differ in this respect, namely, the simple fact case. torts a of stages temporal in different operate they that damages employ the same mechanism for allocating between avoidable injurers losses and their victim, both of from them comparative differ negligence. in this More respect concretely, whereas contributory negligence and mitigation employ an allocates all-or-nothing the test, plaintiff’s one which avoidable defendant or loss the injured plaintiff, incomparative negligence allows for its a flexible entirety apportionment to of either the plaintiff’s the parties. avoidable loss between the and superficial, for it does not emanate from any substantive similarity. The opposite is true: negligence in just its approach to as the allocation it of avoidable injurer loss differs and between victim, so radically too does comparative from negligence differ radically contributory from mitigation of damages preclude, than reduce, rather in only mitigation and negligence comparative this respect. The the reason liability that of both the defendant is the same reason why contributory 82. Robinette & Sherland, Sherland, & e.g. mitigation doctrine as follows: Robinette Id. 82. part 273, 273, 294 (1992) the (characterizing avoidable under consequences the mitigation doctrine as “injuries proximately caused by the plaintiff’s conduct and therefore barred in whole 81. Such was the conclusion reached by Phillips, Phillips, by reached conclusion the was Such 81. 2013] 2013] TWO SISTER DOCTRINEStort. the IN SEARCH OF REUNION 807 ADAR FINAL VERSION that that mitigation of negligence. damages contributory of doctrine is the with law, tort Carolina South a under contradiction, form of comparative negligence and, as such, creates a Id. Negligence in South Carolina: Implementing 34176-qlr_31-4 Sheet No. 52 Side A 12/09/2013 15:27:08 A 12/09/2013 52 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 52 Side B 12/09/2013 15:27:08 & ART H §§ 7, 26 (2000). (2000). 26 7, §§ IABILITY L , that loss is (causally) , that is (causally) loss Contributory negligence negligence Contributory 83 ex hypothesis PPORTIONMENT OF :A 225–35 (2d ed. 1985). 1985). ed. (2d 225–35 ORTS T AW L OF OF ) Therefore, if two or more wrongdoers are 86 84 HIRD (T AUSATION IN THE ,C ESTATEMENT Likewise, if the only two causes of the loss are a defendant and ONORÉ 85 H In In tort law, the doctrines which fulfill the role of deciding who of . In theory, both the plaintiff and the defendant should have both been found jointly . For a fascinating discussion of the various ways to deal with the problem of . liability. A different several and of joint law doctrine common the basically is This 86 83 85 ONY and mitigation of damages employ what “hard may causation.” Under be such a called concept, a separate a element of loss method for of the causation of which two or cannot be further divided between these more persons on any basis other than persons are legally responsible, strict factual causation. a theory a of theory hard causation, the answer must be no, since there is no objective way of further dividing the loss between the parties. on based is, however, wrongdoers. To It between of contribution the bedoctrine under jurisdictions, sure, such a division is today causation. allowedstrict or hard than in rather soft of most concept a —and severally—liable for plaintiff’s entire loss. for contradiction, how can This, the be defendant liable towards the however, plaintiff for the whole will loss, if result in a the logical plaintiff herself is (also) liable (responsible) for that entire loss is of solution contradiction to common only this inevitable of define seemingly the (and parties as vice versa)? The the creator of the the any loss, from thus exempting other legal responsibility. This is exactly operate. damages of mitigation and negligence contributory of doctrines the way the allocating allocating a single element of loss to a number of contributory causes, see H.L.A. Under wrongdoers. the between trial) a separate (on contribution allow to is whether question then is each of them forliable the extentfull of they the jointly have loss caused. Under such a rigid theory of causation, no apportionment will be allowed between the wrongdoers in a suit brought by the third party, the by suffered loss the whole to is liable with respect them each of since latter. legally legally responsible for causing a certain loss to a third party, and if there is no reasonable causal basis for further dividing that loss into separate identifiable units which can be attributed to only one of the wrongdoers, indivisible. indivisible. The whole loss plaintiff. the or defendant would then have to fall on either the 808 808 theories or two concepts of legal causation. Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM T them—each them—each at a different temporal stage—employ a very under similar which test any negligence on the part of the plaintiff exemption results in from total liability to the defendant. The single difference most between those important doctrines is that, whereas under contributory this negligence is basic rule subject to a number of under exceptions, the these these two is to be held responsible for the seen, already both we of damages. have As of and mitigation entirenegligence loss are contributory a negligent plaintiff, hard causation would not allow any apportionment of since, loss the the parties between 84. R 84. 34176-qlr_31-4 Sheet No. 52 Side B 12/09/2013 15:27:08 B 12/09/2013 52 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 53 Side A 12/09/2013 15:27:08 in 91 , infra That 87 given judgment for for judgment given never note 32,at 236. 88 supra supra , REGOR G C note 12, at 237, 243 (“Comparative negligence negligence (“Comparative 243 237, at 12, note Conversely, under a mitigation of of mitigation a under Conversely, 90 supra , Creditor’s Fault: In Search of a Comparative Frame AW note 40,at 266. L note 1, at 333–34. 11/20/20137:05AM 11/20/20137:05AM This method is based on a fluid more concept of supra supra note 35, at 241 (“[T]he plaintiff is , 89 supra supra note 90, at 244. 244. at 90, note ONTRACT C supra supra AYDEN supra , Fabrizio Cafaggi, Cafaggi, , Fabrizio , (Do Not Delete) Not (Do 2 &H 92 . ORBIN MERICAN MERICAN C Cafaggi, Id See, e.g. See, OBBS OBBS A D Dan Dobbs eloquently summarizes the fundamental distinction In In comparative negligence, on the contrary, the method for . The two which exceptions have been proposed in the literature are discussed . 87 88 AULT IN is typically depicted as conduct that concurs to the breach, without breaking the causal link.”); link.”); causal the breaking without breach, to the concurs that as conduct depicted is typically also see damages for losses that he M added); (emphasis injury.”) or couldloss substantial have avoided by reasonable effort without risk of other in Part IV.B.1–2. Part in damages damages analysis, any equivalent finding to of a defendant’s contributory determination actions self-negligence that and is the the causal plaintiff’s link loss between the has been broken. 89. Mole & Wilson, Wilson, & Mole 89. 90. 91. 92. 2013] 2013] TWO SISTER DOCTRINES itdoctrine isofno applied mitigation exceptions.with practically IN SEARCH OF REUNION 809 ADAR FINAL VERSION between between both parties. allocating allocating responsibility for a causally indivisible which element both the of victim loss and to a wrongdoer have that factually contributed, of is dividing responsibility (and thus also liability) for the loss is to say, as negligence far which is as causally linked to mitigation the plaintiff’s of loss (hereinafter: contributory damages self-negligence) will inevitably is result in the concerned, denial of any the loss. that for compensated to be right plaintiff’s self- the plaintiff’s avoidable loss. causation, which may be named “soft causation.” The theory deserves the title “soft” for three reasons. juries to First, perform because an it assessment allows of courts the and each relative party based on causal a rough assessment of the contribution degree of risk of created by to each thewhen seems conduct party, be of even there way no scientific of verifying the precision of such an assessment; and second, the because apportionment is not assessment of the purely relative (comparative) degree causal, of fault but manifested the in faulty is conduct of based each of negligence, also the the parties. on plaintiff’s Third, an negligence under is comparative breaking the causal not link between the defendant’s necessarily wrongful conduct and regarded as Consequently, the Consequently, even liability, escapes when defendant always under a conventional analysis responsible he for would the have negligent. plaintiff’s been loss, found had the latter not been self- F 34176-qlr_31-4 Sheet No. 53 Side A 12/09/2013 15:27:08 A 12/09/2013 53 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 53 Side B 12/09/2013 15:27:08 . & ? UB P ROSSER ROSSER 3 B.U. OGETHER T IVE L note 31, at 275; P ISTERS ISTERS S supra by courts and uniformly favorable favorable uniformly and courts by , WO T HE EMEDIES The Duty of a Public Utility To Mitigate

R T 93 AN common law rule’ in torts . . . .”) (emphasis added); added); (emphasis .”) . . . torts in rule’ law common :C note 57, at 499 (“The important economic function of complete complete acceptance NABRIDGED NABRIDGED universal supra supra , U NALYSIS OBBS A Despite the fact that it was apparently abolished the 94 B. D , Shiffer v. Bd. of Educ. of Gibraltar Sch. Dist., 224 N.W.2d 255, 258 AN note 17,at 468. D See, See, e.g. See supra supra Roger D. Colton & Doug Smith, Smith, Doug & Colton D. Roger , HEORETICAL HEORETICAL Thus, Thus, the ultimate answer to the question posed at the beginning of 1. Defining the Puzzle Puzzle the 1. Defining Mitigation has, for centuries, been considered by both courts and . T The two doctrines different are schemes functionally for apportioning different negligence Comparative rulesapportionment. in damages reduce proportion to responsibility because and they for the measuring use plaintiff’s that radically fault. discrete Avoidable identifiable consequences rules items unreasonableness. Although fault reducein some sense is involved in of both cases, the damages for loss different.quite response is to that fault caused by the plaintiff’s fault or 94 .L.J. 239, 248–49 (1993) (“There are few principles in the law of remedies as well well as remedies of law the in principles few are (“There (1993) 248–49 239, .L.J. EETON NT III. “Damages” from Nonpayment Through the Offer of Conservation Programs, treatment by scholars. by It is ‘ the treatment see also (Mich. (Mich. 1974) (describing the “principle of mitigation” jurisprudence.”); as Kontorovich, a “thread permeating the entire the mitigation doctrine explains its this this chapter is that mitigation of damages in are largely many similar doctrines. respects important distinction between them The lies in comparative their single fundamentally different most negligence and approach to the allocation of avoidable self-harm. While comparative negligence divides the for responsibility any such harm between both of its creators according to a comparative causal combined contribution, mitigation test always allocates of the harm comparative plaintiff. the to exclusively fault and 93. 93. 810 810 between comparative negligence and treatise: legendary mitigation of damages in his Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM I K A. The Mitigation Puzzle Puzzle Mitigation The A. commentators as a universally accepted and a highly regarded doctrine of the common law, economic policy. reflecting both good moral sense and sound established as that ofa claimant’s duty of mitigation.”). 34176-qlr_31-4 Sheet No. 53 Side B 12/09/2013 15:27:08 B 12/09/2013 53 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 54 Side A 12/09/2013 15:27:08 , In § § at at Id. and and Id. Id. Id. ODE , “as that .C Parker § 3 cmt. b b cmt. 3 § EV .R . § 34-6-2-45(a)(1) Jacobs Jacobs v. Westgate ASH obiter obiter dicta in cases which IABILITY NN Ridley v. Safety Kleen L A Indeed, the Third Third the Indeed, 99 ODE ODE .C ND obiter obiter dicta ition ition of “fault” by judicial decision. , 529 So. 2d 1145 (Fla. Dist. Ct. App. .§ 604.01 (2011); W (2011); 604.01 .§ PPORTIONMENT OF Finally, even in these states, the TAT :A 98 § 1(b), 12 U.L.A. 125 (1977) (emphasis added). added). (emphasis (1977) 125 U.L.A. 12 §1(b), .S CT ORTS INN the doctrine seems alive and well in A T 95 . § 09.17.900 (2012); I OF OF AULT ) F 11/20/20137:05AM 11/20/20137:05AM TAT Parker v. Montgomery an accident or initial injury. . . . [A] plaintiff’s post-accident post-accident plaintiff’s [A] . . . injury. initial or accident an S HIRD (T before Second, even those states have not always followed followed always not have states those even Second, LASKA § 668.1 (2011); M 97 , A OMPARATIVE (Do Not Delete) Not (Do 2 ODE .C For a number of reasons, this formal convergence has not not has convergence formal this reasons, of number a For C e.g. , 96 NIF unreasonable unreasonable failure to avoid an injury or to mitigate ” ESTATEMENT See OWA OWA , that under Florida law the two doctrines were subsumed and that the doctrine of . that Court ruled the Supreme of uncertainty, a after period in Indiana, example, For . For example, in Florida, the cases which proffered that mitigation was subsumed . R .U . , 693 So. 2d 934, case. 936 seatbelt defense (Fla. another 1997), In 98 99 95 96 97 Minnesota, a pure comparative fault a Minnesota, state, pure comparative the of Court in Appeal stated, to items of consequential damage, the unreasonable failure to mitigate damages is ‘fault’ Ridley negligence.” comparative of adoption the with abolished “was consequences avoidable “[t]he phrase ‘unreasonable failure to avoid an injury or to mitigate damages’ . . . applies only only . . . damages’ an or applies to injury to avoid mitigate failure ‘unreasonable phrase “[t]he to a plaintiff’s conduct pre-tort allegedly with allfaultnegligent were comparative concerned into a conduct—usually failure to use a safety device—cases in which the application of the mitigation doctrine has always been questionable. In (2000). (2000). her failure to use a seat belt is now subsumed within that of comparative negligence.” 766 So. 2d 1175 (Fla. Dist. Ct. tenant’s App. property 2000), resulting in a its case destruction, involving loss. the to mitigate the failure the his and fault comparative trial alleged unlawful plaintiff’s the both court separately eviction instructed of the a jury to consider at 1181. The Court of Appeal overruled the trial court, observing, based on conduct conduct . . . is not to be considered in the assessment of N.E.2d fault 671,674–75 (Ind. 2005). . . . .” Kocher v. Getz, 824 suggestion defendant’s the rejected Appeal of Court Florida the case, defense seatbelt a 1988), to failure a as conceptualized be could device child’ssafety a use to parent a of failure the that mitigate damages, where the introduction base comparative negligence. of such The court reasoned that wasmitigation “the of statutorily application damages of for the inadmissiblethe concept purpose of of to reducing a plaintiff’s damages resulting from his or 1148. 1148. This view was later accepted by the Florida Supreme Court in Corp. (2012); (2012); I 4.22.015 (2012). Louisiana adopted the UCFA’s1985). (La. 967,973–74 2d So. 469 defin Co., Ins. Casualty & Fire Farm State v. Watson 2013] 2013] TWO SISTER DOCTRINES Third Restatement of Torts, IN SEARCH OF REUNION 811 ADAR FINAL VERSION the literal formulation, and some have explicitly statute refused to to post-tort apply self-negligence. the virtually virtually all common law jurisdictions. Within the United States, it has shown remarkable endurance in the face of comparative which, fault statutes following the Uniform Comparative Fault literally subsumed Act it (UCFA), under have a wide definition of covers fault which explicitly “ damages. alleged alleged absorption into doctrine was comparative almost always proclaimed as negligence ofhad nothing to do the with post-accident misconduct. mitigation relatively relatively small. been very influential. First, it should be noted that the number of states which have incorporated the definition all-encompassing of the is UCFA 34176-qlr_31-4 Sheet No. 54 Side A 12/09/2013 15:27:08 A 12/09/2013 54 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 54 Side B 12/09/2013 15:27:08 See See also , to the doctrine of contributory negligence is the doctrine negligence , of to the doctrine contributory , Ostrowski v. Azzara, 545 A.2d 148, 151 (N.J. 1988) All in all, therefore, there is still a universal 100 See, e.g. 101 Restatement (Third) of Torts: Apportionment of Liability § 3 (2000). 3 (2000). § Liability of Apportionment Torts: of (Third) Restatement See in effect, but not in theory 2. The Individualistic Foundation of Mitigation Mitigation of Foundation 2. The Individualistic negligence demonstrated contributory that the previous I In Section, To me, this state of affairs presents a puzzle: If, as argued above, . The is orthodoxy even maintained by courts that the recognized have close affinity 101 ideological ideological background which inspired and helped shape both doctrines can support my claim that the coexistence of the two doctrines is indeed must somehow that tension a theoretical and does create indeed a puzzle, be resolved. and mitigation of damages are in essence identical doctrines. I believe that such a strong substantive similarity is not merely coincidental. reflects It a shared set of values ideology. originating This is from the individualistic the philosophy which same gave rise to underlying the identical identical problem, and if negligence has comparative had the upper hand over contributory negligence—as it clearly has, in most jurisdictions— all-or- the law of tort within the endurance to understand isone then how nothing rule of mitigation, which in almost every respect is identical to contributory negligence? Are these entrenched institutions of tort law compatible with each other in any way? which is Can offered to the courts flexible and juries machinery in the pre-tort stage be reconciled with the sharp ‘all-or-nothing’ decisions in mitigation the post-tort stage? rule To me, the which prima facie answer to governs question this seems to be their “no”. My basic intuition is that this fundamental divergence of approach must mirror a deeper theoretical conflicting philosophies. gap I believe between that understanding the historical and mitigation and comparative negligence reflect different approaches to an between between the doctrines. (“Related consensus among courtsconsensus among thatand commentators tort under law American mitigation of damages and comparative (or contributory) still negligence two are clearly distinguishable concepts that should other. each with not be confused of avoidable consequences.”)(emphasis added). which which can be apportioned under the Bombard’s Access Floor Sys., Inc., comparative 354 N.W.2d 837, 840 fault (Minn. Ct. App. 1984). statute.” Mike’s Fixtures, Inc. v. 812 812 Restatement fails to cite academic, any in support concrete of its reference, radical either proposal doctrine of to mitigation. judicial altogether abolish or the Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM 100. Lesmeister v. Dilly, 330 N.W.2d 95, 103 (Minn.1983). 100. 34176-qlr_31-4 Sheet No. 54 Side B 12/09/2013 15:27:08 B 12/09/2013 54 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 55 Side A 12/09/2013 15:27:08 .L. . 233, ARV Caprice Caprice EV .L.R , 120 H See also See ARV As tort scholars scholars tort As , 21 H no higher respect for for respect no higher 102 104 . at 724–26. 724–26. at . Second, a legal system system legal a Second, Id 105 , (1809) 103 Eng. Rep. 926 (K.B.), There seems to be a consensus consensus a be to seems There 103 Tort Law and the Economy in Nineteenth-Century . Contributory Negligence L.J. 1717 (1981). The Divergence of Contract and Promise . 131, 164 (2008) (speculating briefly about the possible ALE ALE Butterfield v. Forrester EV ...... This conception is part of the very atmosphere of 11/20/20137:05AM 11/20/20137:05AM , 90 Y 90 , Gary T. Schwartz, Schwartz, T. Gary in in note 13, the court recognized the defendant’s negligence but Francis H. Bohlen, Bohlen, H. Francis .L.A.L.R OY (Do Not Delete) Not (Do 2 supra See also , 42 L Restitutionary Disgorgement for Opportunistic Breach of Contract and Mitigation See See generally Seana Seana Valentine Shiffrin, Both Both contributory negligence and mitigation of damages impose a First, First, in a rapidly developing industrial and urbanized society, Contributory Contributory . negligence . . throws on protecting his own interest the individual the primary English legal burden thought . . .. [T]he plaintiff of can ask from others them to pays himself he than rights his of another, and avail himself of it, if he do not caution himself to use be common in and the ordinary right .. . . One himself. for care person ordinary being using another’s in fault will not dispense with A party is not to cast himself upon an obstruction which has been made by the fault . 708, 725–26 (2007). (2007). 725–26 . 708, at 927. 927. at (emphasis added). added). (emphasis EV Id. have have noted, the moral justification for this demanding approach towards potential victims is far from obvious. 103. In the contractual context, it has been argued that mitigation reflects a deviation of of deviation a reflects mitigation that argued been has it context, contractual the In 103. promising. of morality the from contracts of law common the that that the best explanation is provided by two interconnected moral ideas stemming from the individualistic philosophy century. which nineteenth the of most throughout thought dominated legal 253–55 (1908). Bolden notes the following regarding contributory negligence: negligence: contributory regarding following the notes Bolden (1908). 253–55 R 102. 102. imperative imperative of self-protection or self-preservation. 2013] 2013] TWO SISTER DOCTRINES development of many common law doctrines during the eighteenth and centuries. nineteenth IN SEARCH OF moral duty REUNIONto take reasonable steps to protect one’s own welfare, even when the source of the risk is the unlawful or unreasonable conduct of another person. In order to 813 encourage people to abide by this perceived moral duty, the common law attached a severe legal sanction, namely, the rule denying plaintiffs any right to demand compensation for harm which they could have and should have avoided had they followed the ADAR FINAL VERSION 104. moral idea behind considerations.”). economic from stems mitigation the supporting mitigation doctrine and 104. concludes that “[t]he America: A Reinterpretation clearest rationale willing to encourage individuals and enterprises to engage in risky but individuals individuals are not to be therefore should perceived concern as themselves with “their promoting brothers’ their while not overly relying on the own help of keeper” others. good, and L. Roberts, of Damages Id. 105. In the famous case of of case famous the In 105. also discussed nonetheless found the defendant not liable, given the plaintiff’s negligence in failing to notice reasoned: Court The injury. avoid and danger the 34176-qlr_31-4 Sheet No. 55 Side A 12/09/2013 15:27:08 A 12/09/2013 55 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 55 Side B 12/09/2013 15:27:08 , & . 65, ISK ISK OSNER TUD ARRIS ET S H The Social A. P , 70 J. R note 33, at 967; EGAL if he omits omits he if ONALD ICHARD , D supra supra Such accidents— , 10 J. L 106 See, e.g , 34 Mass. (17 Pick.) 284 (1835) . 1717, 1736–37 (1982). (1982). 1736–37 . 1717, he fails in social duty social in fails he EV note 24, at 468–69. 468–69. at 24, note .L.R 109 itigation itigation principle have usually been examined 210–16 (2d ed. 2002); R 2002); ed. (2d 210–16 107 ARV Loker v. Damon v. Loker Optimal Pricing of Sequential Inputs: Last Clear ORT T 95 H 95 Optimal Loss Mitigation and Contract Design is often in a moral, if not in a legal point of view, view, of point legal a in not if moral, a in often is 118–26 (7th ed. 2007); Goetz & Scott, Scott, & Goetz 2007); ed. (7th 118–26 AW L . . The law will not permit him to throw a loss, resulting from ONTRACT AND C Comparative Negligence,supra Indeed, such reasoning is apparent in the early nineteenth NALYSIS OF NALYSIS 108 A EMEDIES IN While these explanations have more often been discussed in the . The economic foundations of the m . Miller v. Trs. of Mariner’s Church, 7 Me. 51, 55 (1830) added). (emphasis For an . Prosser, If If the . party. . can protect himself from trifling expense, or with reasonable exertions, a loss, arising from a breach to do so .. . . [H]e who has it at in his power to prevent an injury to his neighbor, a and does not exercise it, it for accountable a damage to himself, upon another . .. . highly highly individualistic attitude of the century. . . . common [T]here is law reason to of think the that the along early with courts the concepts of found duty nineteenth and proximate in cause, a convenient this instrument defense, of control over the jury, by which the liabilities of were curbed rapidly and growing kept within industry bounds. Probably Probably the true explanation [for contributory negligence] lies merely in the . 53, 54 (2003); Donald Wittman, ., R 108 109 107 CONOMIC CONOMIC NS and such litigation—are socially brought wasteful under and control therefore by consequences doctrine should and stern the defense of be legal contributory negligence. rules, As it: put Prosser Dean such as the avoidable 77–78 (1981). (1981). 77–78 Mary Kelly & Mary Kelly Anne E. Kleffner, old torts case with a similar reasoning, see throughout to land). (trespass of developed cases the ain early For the survey doctrine which Chance, Mitigation of Damages, and Related Doctrines in the Law in the contractual context rather than in rather than the in context of context the contractual tort law. E context context of contributory negligence, they seem equally applicable to the doctrine of mitigation, which has often been rationalized by reference to its important moral and economic role in discouraging socially wasteful behavior. AL 106. The “gatekeeper” function of common law doctrines such as contributory contributory as such doctrines law common of function “gatekeeper” The 106. negligence and assumption Consequencesof Common Law Rules, of risk is mentioned by Richard A. Epstein, 814 814 nonetheless productive activities must be careful not to overburden itself with a flood of litigation careful and arising reasonable people could have out avoided. of unfortunate accidents which Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM I century century cases which applied the doctrine. For example, in stated: Maine of Courta Supreme the in 1830, decided case contracts 34176-qlr_31-4 Sheet No. 55 Side B 12/09/2013 15:27:08 B 12/09/2013 55 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 56 Side A 12/09/2013 15:27:08 , , note note YMLICKA ETCHMAN supra supra K , K 1118 (2d ed. ed. (2d 1118 110 ILL ILL ALPH ALPH NDIVIDUALISM AND EDGWICK ,I ATERIALS M (1993); R (1993); (1987); W (1987); RIANDIS note 69, at 1695 (noting that C. T RITICS ASES AND Id. Id. C ILEMMA , C D TS ARRY I supra supra note 54, at 127–58; S 111 Communitarian Critics of Liberalism, in ODERN ODERN 120 (Schlomo Avineri & Avner De-Shalit eds., ONTRACTS (1989); H (1989); supra supra , , C :AM ULTURE ULTURE IFE ILMORE ORMICK C L 11/20/20137:05AM 11/20/20137:05AM C G C NDIVIDUALISM NDIVIDUALISM I AND AND OMMUNITARIANISM AND , RANT RANT UBLIC UBLIC ,C P &G ELL B (Do Not Delete) Not (Do 2 OMMUNITY (1995); Amy Gutmann, Gutmann, Amy (1995); ESSLER ,C ANIEL ANIEL K Without engaging in a full-blown inquiry into this question, I would would I into question, this in inquiry a full-blown engaging Without 3. The Communitarian Foundation of Comparative Negligence Negligence Comparative of Foundation 3. The Communitarian Given the central role of comparative negligence in American tort Generally Generally speaking, unlike individualist theories, communitarian . An exception is noted in Simons, . For general studies of communitarianism and its relationship with liberalism, see To the nineteenth century legal mind the propositions that no man was his brother’s keeper, that the race was to the swift and that the devil should take of nineteenth right. feature the but The striking morally not only obvious most seemed hindmost century contract theory is the narrow assumed. scope of social duty which it implicitly 110 111 OLLECTIVISM OMMUNITARIANISM AND IBERALISM RIEDRICH NDIVIDUALISM AND “[s]urprisingly, the noneconomic literature on contributory fault is sparse.”). Notably, Simons Simons Notably, sparse.”). is fault contributory on literature noneconomic the “[s]urprisingly, does not distinguish self-negligence. post-accident contributory and pre-accident between from comparative negligence, nor does he distinguish generally D like like to suggest that the fundamental theories is not so distinction much in the content of their particular moral between demands; those moral rather, it is the moral perspective from which those which demands emanate mark the comparative negligence. More concretely, while it is the individualistic true theoretical approach of the common law courts which nourished and shaped the all- gap between or-nothing rule contributory of and contributory eighteenth and negligence nineteenth centuries, throughout it was most the political rise thought of of during communitarian the twentieth the century, which best explains negligence. the of comparative emergence law and the wide interest of commentators in its quite various surprising that aspects, the question it of its is underlying moral theory has not been thoroughly pursued in tort scholarship. What lacking seems particularly is an underlying exploration the of doctrine, the predecessor. itshistorical negligence, contributory underlying and philosophy its or relationship the to moral theory the moral theory C the the nineteenth century, see M 2013] 2013] TWO SISTER DOCTRINES IN SEARCH OF REUNION 815 ADAR FINAL VERSION I L C theories theories perceive humans not as atomistic creatures, but rather as social 1992). 1992). 1970). Kessler and Gilmore specifically note the following: following: the note specifically Gilmore and Kessler 1970). Id. 41, 41, at 295–337. The “Darwinist” approach in light of which the theory classical of contract law developed in the nineteenth century was beautifully depicted by F Gilmore and Kessler. 34176-qlr_31-4 Sheet No. 56 Side A 12/09/2013 15:27:08 A 12/09/2013 56 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 56 Side B 12/09/2013 15:27:08 Id. 112 Id. that that .1473, 1540–41 1540–41 .1473, EV 117 It is for this reason reason this for is It 118 relational relational obligation , 33 UCLA L. R note 69, at 1737–44. Under the first That duty dictates the taking 115 supra supra The apportionment of liability is Furthermore, instead of founding the of the founding instead Furthermore, 113 . 649, 661 (1995). (1995). 661 649, . 114 Between Two Worlds: The Shift from Individual to EV nguishes between two possible understandings of the Tort Law and Communitarianism: Where Rights Meet L. R OREST F note 111, at 120. 120. at 111, note AKE AKE supra . at 652–54. . at 683–84. . at 683–84. , 30 W 30 , Therefore, under the communitarian theory of comparative Robert A. Baruch Bush, Bush, Baruch A. Robert Robert M. Ackerman, Ackerman, M. Robert 116 See id See id See id See See See Yet, Yet, as injurers are also members of the community, they too must 117. Simons, illuminatingly disti illuminatingly Simons, 114. 115. 116. 117. law’s sanctioning of self-negligence. Simons, interpretation, a victim’s duty to take self-precaution is directed towards Under the alternative society approach, the victim’s only. duty is directed towards the injurer, in which case obligation. moral private a i.e., injurer, the rescue” to “duty a as conceptualized be can it 118. 118. 112. Gutmann, Gutmann, 112. 113. 816 816 beings that can fully fulfill their goals only within a community. Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM carried carried out according to the parties’ community’s judgment degree of each loss. victim’s the causation—for of of the responsibility—measured by both fault and society society imposes on each and every one of its members towards all other members; an obligation to refrain from acting in a manner which might expose another citizen to future legal liability with respect to a loss that hardship. great any without avoided been have could abide abide by the norms of cooperation and solidarity. (1986). (1986). reflection reflection of a general social duty. It is a responsibility, responsibility, the law’s sanctioning of self-negligence is not merely a potential victim’s duty to act exclusively on her duty of self-protection, a on of her a duty to act duty self-protection, exclusively victim’s potential communitarianist approach will base that duty on obligation towards her potential injurer. the victim’s social of reasonable precautions, not only to safeguard oneself from one’s own mistakes, but also to and tortfeasor thus being exposed to both social and condemnation legal protect one’s fellowsanction. citizen from becoming a avoidable avoidable loss is shared by both. Hence the cooperation, communitarian solidarity, emphasis and comparative responsibility, mutual which stands on at the consideration. heart of the doctrine of social comparative negligence, can The easily be rationalized and values justified in notion light of such of these terms. Under comparative negligence, rather than as holding any one of the parties responsible for the victim’s entire loss depending on which of them had the “last chance” to avoid it—or, for that matter, any other predetermined criterion—the responsibility for the victim’s Responsibilities Group Responsibility in the Law of Causation of Injury 34176-qlr_31-4 Sheet No. 56 Side B 12/09/2013 15:27:08 B 12/09/2013 56 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 57 Side A 12/09/2013 15:27:08 — ed., ed., ý The The Simon Simon 121 See Tich š for for the losses ittaker’s ittaker’s analysis of the ex post 149, 160–68 (Lubo 160–68 149, AW L According to the author, this this author, the to According 124 responsibility AUSATION IN some C in even in the face of non performance , for their own safety and the safety of others, others, of safety the and safety own their for This duty of solidarity is expected from the 11/20/20137:05AM 11/20/20137:05AM note 113, at 683. 683. at 113, note 123 note 90, at 249–54. To this, the author adds the traditional 125 supra note 90. ex ante supra supra supra supra 120 (Do Not Delete) Not (Do 2 Under the principle of good faith, debtors and creditors— Under the communitarian interpretation offered here, the the here, offered interpretation communitarian the Under Ackerman, Ackerman, 122 . . . . 119 Contributory Fault and Mitigation, Rights and Reasonableness: Comparisons See Id Id Id Id The communitarian account of comparative negligence presented and it requires them to accept which by acting or carelessly unlawfully they have imposed on others or on themselves. here gains some support from a recent article written by a comparatist, which examined the divergent approaches common law to the problem of of loss allocation in contract the cases. civil law and the not only within contract law, obligations—are but expected to more cooperate generally and under interests to of the each take other. law into of account the 2007). 2007). that claims Whittaker in is law, English termination of conceived as a self-legitimate help remedy for serious breach and that this might explain the readiness this burden of of the courts defendant with a to burden correlative balance of mitigation on the promisee, who is reluctance reluctance of the civil law tradition to give efficiency considerations any non-instrumental prominence over values such as justice different approaches or of the French fairness.and English law to the right to Simon terminate to a contract Wh support seems Cafaggi’s general claim, that system and the its moral values have a fundamental direct impact on the ideological details of legal doctrine. approach of a Whittaker, legal between English and French Law 125. Cafaggi, Cafaggi, 125. 121. Cafaggi, Cafaggi, 119. 120. 121. 122. 123. 124. 2013] 2013] TWO SISTER DOCTRINES that, while an injurer should be allowed to voice a complaint against a tort IN victim SEARCH for exonerate her irresponsible the OF conduct, injurer behavior. REUNION such from conduct responsibility does not for his 817 own unlawful ADAR FINAL VERSION explains the wide comparative negligence as a general defense not only in tort law, but in recognition, in as well. law contract continental legal systems, of obligor obligor and the wrongdoing—by obligee one of the parties. imperative imperative of cooperation and solidarity is twofold: it obliges people to exercise due care author author emphasizes the divergence which between perceives the contract American law approach, device, mainly and the as civilian approach, which an regards the efficient principle of faith good risk allocation as the generally. cornerstone of contract law and private law more 34176-qlr_31-4 Sheet No. 57 Side A 12/09/2013 15:27:08 A 12/09/2013 57 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 57 Side B 12/09/2013 15:27:08 ”— note note supra faute faute de la victime The Transformation of 311, 312 (Robert Brownsword Brownsword (Robert 312 311, at 161–62. In contrast, under under contrast, In 161–62. at itigate, itigate, as well as the scope and Id. 126 ONTRACT C . Thus, the understanding of the duties of , Daniel Friedmann, Id AITH IN F See, e.g. , at 160–68. 160–68. at , at 166–68. This approach fosters, in turn, a judicial judicial a turn, in fosters, approach This 166–68. at OOD Id. G supra ). in , (pacta sunt servanda If theIf analysis is here then offered correct, is how one to theresolve To conclude, rather than reflecting a mere change of technique, the . The of influence on ideology the in legal communitarian private developments law 126 doctrines of mitigation and comparative negligence. What if the premise the premise if negligence. What comparative and of mitigation doctrines that they are based on contradictory ideological mistaken? viewpoints is simply Can mitigation of damages integrated into a and single theoretical comparative framework which, by negligence reference to a be with with its all-or-nothing blade, integrity, in retain the face of the its comparative fault revolution? One legitimacy possible and answer is that its changes in a legal doctrinal culture are slow to arrive and that the abolition of mitigation is only a matter of time. Along the same line of thought, one can conservative and that speculate the legal community that has not theoretical yet tension which the recognized coexistence courts of the the doctrines creates within and the system. lawyers This, in large part, may be a result of our mistaken are habit of simply looking at comparative negligence and mitigation as other. two each to do with nothing practically have which doctrines independent just proposed, A completely different answer may there be that, contrary to what I have is actually no theoretical tension between the mitigation mitigation puzzle? How is one to explain the fact that, all in all, the two quite contradictory doctrines continue to legal coexist doctrines, as without two any apparent independent conflict? How does mitigation, et al. eds., 1999) (“Broadly speaking, modern law is moving from an individualistic approach to a more communitarian . . . approach. The process of curbing the individualistic approach has profound effects in many fields and is in fact reshaping the wholeFor a areageneral of communitarianprivate perspective law.”).on tort law, see, for example,briefly). only negligence comparative Ackerman,(mentioning 680–81 113, has been noted by important scholars. Law Insurance in Faith’ ‘Good shift shift from contributory negligence to comparative negligence within the to seems reflect socialaworld process. deeper Anglo-American much It reflects a general movement from a strongly individualistic to tort liability. of regime communitarian a more much expected to act diligently in searching for a substitute. 818 818 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM French law, termination is considered a “last resort” judicial promisor’s remedy, right as it to conflicts perform with the the contract, as well performed as with the idea that contracts are to be obligation obligation of ongoing cooperation—influences a legal system’s readiness—or reluctance—to recognize a social duty—with legal consequences—to Whittaker, duty. such of content m reluctance reluctance to view the failure to look for substitute performance as a “ the French parallel to contributory negligence. parties to a contract in the face of breach—independent recourse to the market versus an 34176-qlr_31-4 Sheet No. 57 Side B 12/09/2013 15:27:08 B 12/09/2013 57 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 58 Side A 12/09/2013 15:27:08 supra See supra , Kelly, , Kelly, 129 See, e.g. because it captures a a captures it because note 77, at 282. In the sources dealing In negligence cases, this is the supra supra 128 , ILLIAMS 11/20/20137:05AM 11/20/20137:05AM notes 71–75 and accompanying text. text. accompanying and 71–75 notes (Do Not Delete) Not (Do 2 much of the apparent theoretical tension between 127 See supra See As mentioned earlier, this borderline is crossed the moment that a The The following Subsection reconstructs a prima facie case for the This moment is normatively significant . This distinction between the tort and the victim’s knowledge of it is rarely . . One explanation for this absence might be that the doctrine of since mitigation, its 128 129 127 with contractual mitigation, the point is often explicitly acknowledged. note 33, at 265 .”). . . . (“[T]heconduct wrongful defendant’s the avoidableabout knows plaintiff consequences doctrine generally operates only after the between between the doctrines was them. between efficiently masked by the entrenched traditional dichotomy cases in tort that assume to implicitly seem writers and courts but literature, the in emphasized these events often converge. Williams Glanville argued that, in practice, the does distinction not matter so much, since ifthe plaintiffis unaware of the tort, his failure to mitigate will most reasonable. W be considered probably very inception, was founded not so much on any moralsound economic policy of theory self-reliance discouraging and but preventing social waste. rather on what seemed a notes 102–07 and accompanying text. If this is true, an attempt to reconcile that doctrine with which negligence, is comparative clearly supported by a strong moral sentiment, might seem doomed from the start. In my view, this explanation is only partially convincing since, as we have seen, the principle of eighteenth mitigation and nineteenth is centuries. supported by A simpler the explanation individualistic may be morality that of the moral the tension comparative comparative responsibility and sufficient attention to the normative significance of the distinct temporal mitigation dissolves, operates. doctrines the of each which at stage if one pays tort is committed against the victim. More precisely, the borderline the is moment in which the victim victim becomes of aware a of his tort, negligence becoming and a a failure which to mitigate. marks the boundary between comparative comparative comparative responsibility, which has not yet literature: been considered in the 2013] 2013] TWO SISTER DOCTRINES single moral idea, accounts allocation IN systems? for their SEARCH In apparently the suggestion. this oflatter plausibility contradictory remainder of loss OF the Section REUNION I explore the B. The Integration Responsibility Comparative Thesis: 819 Defending Mitigation under a Theory of integration of the doctrine of mitigation into the general principle of ADAR FINAL VERSION transformation transformation in the mental state of the injured party. It is at this very moment on, the mitigation doctrine imposes on the victim a to avert duty imposes doctrine on the victim on, moment the mitigation injury. this initial from flow might that loss avoidable further moment in which the injured party (hereinafter: the victim), that first she had learned been injured by the defendant’s breach of duty. From that 34176-qlr_31-4 Sheet No. 58 Side A 12/09/2013 15:27:08 A 12/09/2013 58 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 58 Side B 12/09/2013 15:27:08 . EV , and .L.R Contributory 131 not not merely OLUM note 105, at 257 .C once the risk is to take steps to avoid to steps to take avoid RIT supra supra B and guard against and guard against see , Ariel Porat, merely probable dangers itigate itigate in the post-breach time , 28 U. See, e.g. 130 Such recklessness—which, for the the for recklessness—which, Such to oneself or others.” Bohlen, Bohlen, others.” or oneself to the risk latent in such a violation has actually . Unlike a potential victim who has not yet been injured, or in the face of known peril in known the face of Indeed, Indeed, it be may argued, and this seems to me strong an intuitively The distinct nature of society’s increased expectations from a . In the contractual context, such an argument serves to justify the distinction 130 Negligence in Contract Law: Toward A Principled Approach stage—warrants stage—warrants a qualitatively different legal response. That response for compensation. claim In victim’s of the rejection outright law’s is tort refusing to allow any apportionment of the avoidable loss between the wrongdoer and the victim, and by allocating it exclusively to the latter,the law signals inexcusable. Most that importantly, that the conduct from is an inexcusable victim’s not individualistic only perspective conduct which regards is no person unacceptable as and the claim, claim, that a tort victim who, in the face of a clear that understanding he or she has been wronged fails to take such prophylactic reasonable steps to minimize the negative consequences careless, of the the victim wrong, is is reckless. reason mentioned above, cannot as easily be presumed in the pre-tort loss from breach. During the pre-breach phase, the latter is allowed to rely on performance by by performance on to rely allowed is latter the phase, pre-breach the During breach. from loss the promisor without fear of legal sanction, but the failure to m phase will result in the loss of the right to compensation. between pre-breach and post-breach failures on the part the on of promi failures the post-breach and pre-breach between careful action action careful added). (emphasis 820 820 moment that the plaintiff becomes rights aware of have the fact been that concerned—that the violated victim’s and—where materialized the tort Q U I of Nwho N is negligence I not P yet I is A aware C that fault, the the fully L aware injury victim cannot Aclaim that, was in Wfailing to causedmitigate, he R by E another Vor person’s she I was E legitimately W relying on the defendant’s performance the of victim. towards care of duties legal his 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM 131. Hampton v. State Highway Comm’n, 498 P.2d 236, 249 (Kan. 1972) (emphasis (emphasis 1972) (Kan. 249 236, P.2d 498 Comm’n, Highway State v. Hampton (1994). 159 141, 131. added). In a seminal article on contributory negligence the view was expressed that “[t]he decided cases recognize, though they do not expressly caution and caution,—taking to in care formulate,advance provide against a difference between pre- potential victim in potential victim the post-tort stage in was acknowledged the case law. between For phases the different in example, a distinguishing negligence case, the Supreme Court of Kansas noted: “While as a general rule one must use reasonable diligence to mitigate one’s damages known . . . one is not to required anticipate negligence occur.” should negligence such if ensue might which damages 34176-qlr_31-4 Sheet No. 58 Side B 12/09/2013 15:27:08 B 12/09/2013 58 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 59 Side A 12/09/2013 15:27:08 132 HESIS T NTEGRATION NTEGRATION I of society’s expectations ITIGATION M IMITS OF THE OF THE IMITS L HE nature nature and extent ARDSHIPS OF :T H 11/20/20137:05AM 11/20/20137:05AM note 118, at 1548–49. 1548–49. at 118, note NALYSIS A AND THE THE AND As a corollary, the symbolic reaction of the legal supra 133 (Do Not Delete) Not (Do 2 . at 1549. Bush, Bush, See See id See ORMATIVE N This This Part seeks to assess the normative strength of this defense. The previous part of the Article suggested that, notwithstanding If If this integration thesis is convincing, I believe it can provide at IV. weight. weight. In so doing, the theoretical framework for integrating that doctrine into integrative a general regime thesis has provided not of comparative responsibility, only but also a a prima facie normative defense doctrine. mitigation of the their their radically different approaches to the allocation of and avoidable despite their loss opposing ideological sources, comparative negligence and mitigation of damages temporal borderline between may the doctrines is given sufficient normative be theoretically reconciled, if the 132. 132. 133. 2013] 2013] TWO SISTER DOCTRINES keeper of his brother, but from a communitarian perspective as well. IN SEARCH OF REUNION 821 ADAR FINAL VERSION least least a prima facie rejoinder to the mitigation puzzle. The answer is that tort law’s transition from comparative negligence to mitigation post-tort in time the phase is not arbitrary nor does communitarian it set reflect of a values shift to from a a strictly Rather, individualistic or the utilitarian. shift from a flexible merely reflects to the a dynamic strict loss allocation apparatus system system is to deprive the plaintiff of his moral right to share part avoidable of losses his with his blameworthy injurer. Formulated differently, in failing to mitigate a perceived negligent. contributorily as 100% regarded injury, the injured party should be any any further loss—in which case he will be compensated for any loss he for his avoidable did bear full responsibility in not avoiding—or succeed losses. from potential victims at different temporal stages. stages. the pre- Because—in temporal at different potential victims from tort stage—those expectations responsibility are is much the less responsibility is not appropriate demanding, available, however, after sharing solution. a committed. tort At this stage, has the victim must either already act reasonably to been avert Such a partition of This This is so because, toby failing act in a inmanner reasonable the face of a known violation of disrespect his for rights, the the core victim values consideration. of of the cooperation, tort solidarity signals and her mutual 34176-qlr_31-4 Sheet No. 59 Side A 12/09/2013 15:27:08 A 12/09/2013 59 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 59 Side B 12/09/2013 15:27:08 ,87 note 21, Uniform L.J. 691, note 105; Contributory ALE ALE note 13, at 202 supra supra , 62 Y . 135, 152–54 (1958) supra supra From Contributory to EV , Bohlen, .L.R for example, Wade, Wade, example, for , LA By allocating the entire F 136 note 24; Turk, note 78, at 47–51. 47–51. at 78, note See, e.g. See, Comparative Negligence, supra note 21, at 220. 220. at 21, note it seems that the overwhelming overwhelming the that seems it , 11 U. supra supra 134 , Contributory Negligence supra , on fairness grounds, see grounds, fairness on The main fairness argument supporting this this supporting argument fairness main The 135 Contributory and Comparative Negligence: A Reappraisal .J. 741 (1968) (surveying and supporting the movement towards towards movement the supporting and (surveying (1968) 741 .J. note 21, at 220–21; Wade, Wade, 220–21; at 21, note inter alia AW The Common Law is Never Finished (Comparative Negligence on the L Comparative Negligence .L.J. 674 (1934) (arguing that the rule of contributory negligence, as well well as negligence, contributory of rule the that (arguing (1934) 674 .L.J. notes139–140. RIAL RIAL Uniform Comparative Fault EO .T M , 22 G See infra infra See , 32 A note 1; Prosser, 1. Fairness Concerns Concerns Fairness 1. Since the turn of the twentieth century, a remarkable amount of . . of criticism Academic the common law gained of doctrine negligence contributory L.J. 697, 699 (1978); Robinette & Sherland, 134 135 ALE ALE Comparative Fault, supra at 300; Gary T. Schwartz, Y majority majority of writers who addressed the issue supported the contributory to move comparative from negligence, mainly for reasons of fairness towards injured victims. (surveying (surveying and supporting the movement towards comparative negligence); Mole & Wilson, supra momentum at the turn of the twentieth middle century of it. and Among seemed the most influential to reach arguments a which exposed certain theof normative peak weaknesses in the the old doctrine were Thomas F. written Lambert, Jr., during this period. March) as as its exceptions, is Comparative Negligence: unjust A Needed and Law Reform illogical); Frank E. Maloney, scholarly scholarly energy was invested in the demonstrating deficiencies many of the common law doctrine of negligence. contributory Leaving aside the modern law and economics literature, 822 822 First, in Section A, I discuss some general concerns with the mitigation doctrine, which cast some initial doubts as to the normative strength of the integrative thesis. illustrated on Then, Q a U in variety I N it seems to superior to between only one the allocating of liability parties of Section N I typical P B, categories I A these in C them. which difficulties L A to are W apportion R E V I E W Doubts Initial Thesis: Integration the of A. The Limits 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM 136. Wade, Wade, 136. (“Why should the mutilated victim have nightsto while his opponent,suffer perhaps guilty of faultthe to a higher degree,sorrows is free to leave aof court of pain, tears,justice bearing a and certificate that sleepless he is not to be deemed a “harsh” tort-feasor? is To call such to a result use a mild comparative negligence, expression, to say the least!”). For more recent support of comparative comparative negligence); Fleming James, Jr., 732–33 (1953) (concluding that comparative negligence would be a far more rational solution solution be rational a would more far negligence comparative that (concluding (1953) 732–33 to the problem Negligence presented by self-negligence); Charles L.B. Lowndes, majority view is that the all-or-nothing rule employed under contributory under contributory rule employed all-or-nothing the is that view majority negligence fails to express the moral responsibility of both plaintiff and defendant for causing the avoidable harm. 34176-qlr_31-4 Sheet No. 59 Side B 12/09/2013 15:27:08 B 12/09/2013 59 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 60 Side A 12/09/2013 15:27:08 137 Part IV.B.4. 138 infra in Part IV.B.2–3. Part in infra 11/20/20137:05AM 11/20/20137:05AM (Do Not Delete) Not (Do 2 To To conclude, the mitigation doctrine can be integrated into a This This is definitely a argument powerful in cases where the following This This basic moral objection to contributory negligence seems to me . discussed are cases These . pursued is further argument This 137 138 liability. In other cases, however, the integrative thesis fails to provide a a fails to thesis provide the integrative other In however, cases, liability. doctrine. mitigation the for explanation moral satisfactory communitarian communitarian theory of comparative responsibility only in those cases in which the plaintiff’s failure to inexcusable, that the mitigate values of is solidarity and so mutual consideration unforeseeable will or not so be offended by granting the tortfeasor a complete release from demonstrate, demonstrate, however, that even when this is not the case, it is not at all obvious that the tortfeasor should be relieved from any responsibility. tort tort stage, than it necessarily would be mean, in the inexcusable however, pre-tort to stage. that a compensation. degree This faulty does One that should not would recall conduct of incurring that occurs explicit with the is, it rarely that intentional, justify a failure is a to mitigate complete is necessarily further harm. Thus, rarely the social denial and moral price of a total rejection of the of plaintiff’s claim may be disproportionate to the moral cost of allowing would which for loss a have not liability escape to wholly the wrongdoer place. first in the lawfully acted latter thehad occurred tort the tortfeasor still has some effective control over the causal process leading to the plaintiff’s further loss. As the following Section will 2013] 2013] TWO SISTER DOCTRINESloss to the latter under the rule, or to the former under its exceptions, the common IN law SEARCH doctrine negligence of either party is conveys a moral excuse for the other party’s default. a OF wrong Furthermore, such an REUNION all-or-nothing approach normative results in injustice toward message, that tort victims which may remain uncompensated for wrongful harms they conduct. unlawful injurers’ their for but suffered have wouldhave not 823 to perfectly applicable the doctrine of mitigation. True, an unreasonable failure to avoid a loss will generally be less understandable at the post- ADAR FINAL VERSION When the plaintiff’s default is both socially excusable and foreseeable from the values standpoint of a the communitarian tortfeasor, reasonable of solidarity, cooperation and mutual consideration are not harmed—but rather advanced—by a rule that allows a flexible apportionment of the parties. the between avoidable loss 34176-qlr_31-4 Sheet No. 60 Side A 12/09/2013 15:27:08 A 12/09/2013 60 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 60 Side B 12/09/2013 15:27:08 , , An 141 The CHWARTZ note 78, at supra supra . 119 (1991). For a TUD S . 49 Orr, (1985); Daniel EGAL More recent analyses, TUD Toward an Economic Theory of S Modern Tort Law and its Reform 139 An Economic Case for Comparative , 20 J. L 46 (Michael Faure ed., 2009). 2009). ed., Faure 46 (Michael EGAL L David Haddock & Christopher Curran, , 14 J. CONOMICS E see see also note 108, at 175 n.5 (citing three empirical works in in works empirical three (citing n.5 175 at 108, note note 130, at 159 (stating that mitigation “encourages action AW AND AW AND note 108, at 307 (“C [claimant] is usually better placed than D L . 1067, 1070 (1986); Robinette & Sherland, supra , Contributory and Comparative Negligence in the Law and EV . 323 (1973); George L. Priest, supra supra ORT ORT T L. R ., supra TUD in OSNER S , . 1, 11–12 (1987) (claiming that comparative negligence reduced overall , P , Porat, , Robert D. Cooter & Thomas S. Ulen, Ulen, S. & Thomas Cooter D. Robert , EV EGAL L , 61 N.Y.U. See, e.g. See, See, See, e.g. See, See, e.g. 140 HARRIS ET AL , 2 J. .U.L.R note 15, at 477 (claiming that there is no evidence to support a claim that contributory To To a large extent, this debate has almost entirely neglected the 2. Efficiency Concerns Concerns 2. Efficiency The law and economics literature is divided on whether an all-or- AL Negligence parallel parallel question of whether and to what extent a flexible apportioning device of comparative negligence may be economically superior to the all-or-nothing rule of mitigation in the consideration post-tort may be explained phase. by the common assumption that once This a lack of tort—or a breach of contract, for that matter—has been committed, the only cost avoider—and therefore the “least-cost avoider” is the victim. Having completed the tort, the tortfeasor ordinarily is out of the picture, with no effective means to prevent aggravating the victim’s situation. regime. however, however, have endorsed negligence, and a some works have more concluded that favorable it is view the preferable of comparative 51–54 (surveying the literature and arguing that no consensus has been reached); has reached); that been no consensus S the and arguing literature 51–54 (surveying 22 V Superiority of Comparative Negligence: Another Vote Another of Negligence: Superiority Comparative on the part of the aggrieved party, who is usually in the best see also position to mitigate damages”); nothing nothing rule of comparative negligence is contributory overall more efficient in the minimizing costs negligence or of a accidents. flexible For quite doctrine a negligence while, of seemed to the be economic firmly established. case for contributory 140. deterrence). 140. 141. 141. support support of contributory negligence); John Prather Brown, Liability 139. 139. 824 824 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM supra supra negligence has a deterrent effect); to reduce his loss . . . .”). . .”). . . loss his reduce to comprehensive survey comprehensive of the development of the debate, see Mireia Artigot i Golobardes & Fernando Gómez Pomar, Economics Literature do the same. The mitigation doctrine is thought to achieve this goal by making it clear to tort potential that victims they will not recover for any loss they can avoid with a relatively small effort or expense—for which It It is therefore more effective—and less costly—to incentivize the victim of the tort to mitigate the loss than to try to encourage the tortfeasor to Economic Theory of Comparative Negligence 34176-qlr_31-4 Sheet No. 60 Side B 12/09/2013 15:27:08 B 12/09/2013 60 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 61 Side A 12/09/2013 15:27:08 144 In my view, even in 145 This with acontrasts pre- 142 In those cases, it is far clear from that the 143 note 35,at 122. 11/20/20137:05AM 11/20/20137:05AM supra , Part IV.B. IV.B. Part Part IV.B. IV.B. Part (Do Not Delete) Not (Do 2 URROWS B note 33. See See infra See See infra See A A second objection is more general, as it applies even to cases in This conventional rationale rationale is This conventional met with two serious objections. The supra which which the tortfeasor situation, and thus has is unable to mitigate the loss. no effective control over the plaintiff’s victim’s consequential loss. tort tort situation, in which no general presumption can be made as to which of the parties—the victim potential or the injurer—can potential prevent cost. the minimal loss—at the hence the accident—and first objection questions the committed, the alone victim assumption is capable of preventing further losses from that, after a occurring. tort As has demonstrated been in the which next the tortfeasor Section, may cases well will have an arise equal in opportunity to avert the 143. 143. 144. In the contractual context, an influential article has claimed that the mitigation mitigation the that claimed has article influential an context, contractual the In 144. principle is too rigid and thus brings into the consideration variety of factors the influencing optimal allocation of the burden ofperformance or of mitigation between the parties. Goetz & Scott, 145. 142. 142. 2013] 2013] TWO SISTER DOCTRINES are they to in recompense. case any entitled IN SEARCH OF REUNION 825 ADAR FINAL VERSION mitigated mitigated is often a very complex decision. In such cases, the plaintiff’s failure to mitigate will mistake, most but often also represent a not reasonable foreseeable tortfeasor. only one, Under an that from assumption, innocent is the inefficient seems to economically point absolve the of tortfeasor view from the victim for foreseeable consequences. of In order to duty make potential injurers to a compensate the fully internalize the cost of their unlawful conduct, which includes the risk of the victim’s erring in the mitigation decision he is bound to take, of to it issome the assign toloss thenecessary avoidable tortfeasor. The extent of that liability should reflect the tortfeasor compared to that relative of the victim, as responsibility determined by a competent of the courtjury. or such cases, a case can portion be of made the for victim’s burdening avoidable the loss. tortfeasor assumption Such with that a a deciding case whether is and based on how the a certain loss should be plaintiff plaintiff is necessarily the “least-cost avoider.” unclear whether, on grounds It of efficiency, is the therefore victim alone also incentivized should to be take preventive action to avert the plaintiff’s avoidable loss. A phase. comparative time post-tort the in even mitigation, to alternative attractive negligence rule thus becomes a prima facie 34176-qlr_31-4 Sheet No. 61 Side A 12/09/2013 15:27:08 A 12/09/2013 61 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 61 Side B 12/09/2013 15:27:08 179 179 AW L , at 75–76 35 ORT T 148 note supra , According to this this to According NATOMY NATOMY OF 147 A note 35, at 757. The Second HE The opposite is true: both URROWS be regarded as denying damages for for damages denying as regarded be ,T 150 B can supra ANE C see see also ETER note 52, at 311. 311. at 52, note P note 93, at 275–76 (“Avoidable consequences rules ONTRACTS cf. supra , C § 918 cmt. a (cited with approval in Ostrowski v. Azzara, Azzara, v. Ostrowski in approval with (cited a cmt. 918 § note 73, at 400–01 & nn.15–26 (citing cases which based , supra ORTS T Phillips, supra supra The the doctrine during courts developing English OF OF See ) EMEDIES 146 ARNSWORTH ,R , F , Bridge, , Penzell v. State, 466 562, N.Y.S.2d 566 (N.Y. Ct. Cl. 1983) (“Where the ECOND 149 OBBS (S D See, See, e.g. See, See, e.g. See See, See, e.g. In my view, such a rule is inconsistent with entrenched principles of principles entrenched with inconsistent is such a rule view, my In 3. Coherence Concerns Concerns Coherence 3. In American jurisprudence, the sanction imposed on careless Whether or not causation reasoning is used in formal justifications [I]t is not true that . . . the conduct of the tortfeasor ceases to be a legal cause of the the of cause legal a be to ceases tortfeasor the of conduct the . . . that true not is [I]t ultimate harm; but recovery for the harm is denied because it is in part the result of the injured person’s lack of care, and public policy requires that persons should be discouraged from wasting their resources .. . . ESTATEMENT Restatement of Torts consequences rule has nothing to do has with causation, but rather only with a bluntly public policy of discouraging socially inefficient acknowledged conduct: that the rationale of the avoidable act act was followed by another wrongful act. the law of causation. subsequent wrongful acts One combine to of cause wrongdoer is a these not automatically absolved single from liability principles injury, just because the his is first that when two of the mitigation principle, there is no doubt that the effect of applying the rule to a certain element of avoidable effect loss is as of exactly the a same legal been mitigated loss any of have cause could a legal considered tortfeasor rule providing that the victim. by under no circumstances is a plaintiffs plaintiffs under the doctrine of mitigation of causation. terms is rarely conceptualized in R 146. 146. 826 826 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM superseding superseding cause, which “breaks the chain of causation” between loss. the plaintiff’s and contract of breach or tort the defendant’s theory, theory, in failing to respond reasonably rights, to a known the violation of self-negligent his plaintiff becomes an intervening or a 150. (“[B]oth the duty to mitigate and exactly the same reason.”). 150. (1997) (1997) (“The doctrine of mitigation, coupled express the plaintiff’s with responsibility for losses the resulting from P’s doctrine reactions to the tort, of whether intervening omissions.”). or acts causation, 149. 147. “Intervening causes” was also used by the courts to justify the doctrine of of doctrine the justify to courts the by used also was causes” “Intervening 1988)). (N.J. 152 148, A.2d 545 147. negligence. contributory work the same way as a decision that says, ‘the plaintiff’s fault was the sole proximate cause’ of some particular item of harm or loss.”); 148. 148. the eighteenth and nineteenth centuries, however, frequently resorted to concepts of causation to explain the doctrine. the the doctrine on notions of causation); 34176-qlr_31-4 Sheet No. 61 Side B 12/09/2013 15:27:08 B 12/09/2013 61 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 62 Side A 12/09/2013 15:27:08 , 13 152 Mickle Mickle v. Causation, ongdoer of 212 (1959) (1959) 212 If those those If Causation and AW , Causation—In 153 L see also AUSATION IN THE Richard A. Epstein A. Richard § 442 (1965); ,C ORTS ORTS The doctrine of mitigation seems T ONORÉ . 653 (1987); Ernest J. Weinrib, 151 OF OF EV See See generally . 1001 (1988). . 1001 ) . 407 (1987); Richard W. Wright, nnot always be justified on ordinary causal principles) L. R EV EV &A.M.H ENT ENT ECOND L. R L. R (S 11/20/20137:05AM 11/20/20137:05AM 181 (S.C. 1969) (“The rule is firmly established that the .-K ART HI OWA OWA H ENT 73 I 73 .-K , 63 C Mitigation Mitigation of Damages: A Matter of Commercial Common Sense HI H.L.A. (Do Not Delete) Not (Do ESTATEMENT 2 R , 63 C Compare See .Q. 273, 294 (1992) (Noting, in the contractual context, that “[t]o escape escape “[t]o that context, contractual the in (Noting, (1992) 294 273, .Q. To conclude, the mitigation doctrine seems to have adopted a rule Paul J. Bates, Bates, J. Paul DVOC Context: An Afterword Blackmon, Blackmon, 166 S.E.2d 173, intervening negligence of a if responsibility such intervention should have been foreseen . third . . . [T]he original negligence person injury.”). the of cause contributing a and active, remains will still not relieve the 152. original wr widespread widespread phenomenon, and one which is often neither fully voluntary nor wholly unacceptable. It is therefore very difficult sense, should in is the not a formal even which wrong tofailure mitigate, to see why the cause. intervening to an as equivalent tort law of the be by treated to present a clear deviation from this principle. In holding the negligent victim to be the only cause of the avoidable loss, the doctrine effectively regards the victim as an intervening cause which breaks the causal link between the tort and the victim’s loss. A order failure to to act reasonably reduce in or avoid however, is neither an the extraordinary nor an unforeseeable event. risks It is a arising out of a completed tort, Wrongdoing victim. This looks like a clearly unjustifiable discrimination against by the victim tort system. As such, the isis the doctrine bound to a generate considerations considerations do not ordinarily justify allowing a tortfeasor to escape liability only because a subsequent tortfeasor same injury, later it is difficult to see how they contributed can justify such a result when to the innocent the of act unreasonable the is factor contributing subsequent the wrongful acts of two parties were nevertheless not be imposed precisely on each concurrent where . . . in several point acts ofinjury.”). of neglect concurred time, to liabilityproduce the may 151. 2013] 2013] TWO SISTER DOCTRINESwrongful acts will be considered second legal in time was IN causesso extraordinary and unexpected, that of it deserves to the SEARCH loss, unlessbe considered a superseding cause. the OF REUNION 827 ADAR FINAL VERSION 153. Prominent tort theorists have argued that the principles of legal causation represent represent causation legal of principles the that argued have theorists tort Prominent for losses the grounds, must responsibility on defendant show causation that would they have occurred at the same do.”). timeto difficult is This contract. and to the same extent, 153. even in the absence of the the moral breach ideal of of corrective justice. which which starkly contradicts established principles principles of are causation. not merely technical or These formal rules, considerations they are of based moral on and other policy considerations. with A (arguing that the mitigation principle ca principle that the mitigation (arguing Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Clarifying theBush Concepts, by 34176-qlr_31-4 Sheet No. 62 Side A 12/09/2013 15:27:08 A 12/09/2013 62 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 62 Side B 12/09/2013 15:27:08 lting lting ORTS T OF OF ) 154 ECOND (S ESTATEMENT note 52. lting lting harm to others.” R supra as those determining the causal relation between the defendant’s defendant’s the between relation causal the determining those as are the same 1. Intentional Wrongdoing Wrongdoing 1. Intentional Intentional wrongdoing is a category in which an unrestricted This This Part of the Article examines the preliminary doubts raised in negligent conduct and resu application application of the undesirable and morally unfair results. mitigation For the sake of our discussion, doctrine intentional wrongdoing clearly can be leads defined defendant, carried out as with the awareness of its being wrongful the towards to tortious conduct socially of the plaintiff a and with no moral intentional torts justification. (such as , , etc.), but also acts of negligence This includes not only which reflect a conscious disregard Intentional of wrongdoing, as the it defendant’s is duty here defined, substantial of departure will care. from usually acceptable manifest standards a of decency and solidarity. social Therefore, whether a tortfeasor disregard has acted of with the a reckless rights of apportionment the made victim under seems a highly general relevant to regime any which recognizes the advantages advantages of the solidarity encouraging between tortfeasors and and victims discouraging avoidable consequences wasteful doctrine, conduct, may in not justify terms an same all-or-nothing time, this solution. of Section highlights At the potential the benefits of more applying flexible a division of responsibility these typical for cases. avoidable This consequences will help within in us which define mitigation the defendable can borders play negligence. of comparative regime a legitimate role under a general B. The Hardships of Mitigation: A Closer Look A Closer Mitigation: of B.The Hardships rule all-or-nothing the of the weakness illustrates It section. previous the endorsed by the (Subsections 1-3) and finally mitigation in a more general context (Subsection doctrine 4). The in goal a is to few point specific out the contexts typical types of cases in which the 154. It is worth noting that Section 465(2) explicitly states that “[t]he rules which which rules “[t]he that states explicitly 465(2) Section that noting worth is It 154. determine the causal relation between the plaintiff’s negligent conduct and the harm resu to him § 465(2) (emphasis added). Mitigation’s deviation from the general theory of causation The might even raise issues of mitigation equal protection under the United doctrine States Constitution. Such seems a thesis than other on grounds was negligence, in of favor negligence comparative advanced contributory abolishing to in support of contradict this Phillips, theory. causation rule. 828 828 liability. tort law of the in incoherence of considerableamount Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM 34176-qlr_31-4 Sheet No. 62 Side B 12/09/2013 15:27:08 B 12/09/2013 62 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 63 Side A 12/09/2013 15:27:08 157 note 54, . 483, 485 EV supra supra , This was .L.R 160 156 INN ORMICK C Unlike its pre-tort pre-tort its Unlike C 155 , 27 M Since reasonability is the the is reasonability Since 158 , at 133. 133. at , 54 note 11/20/20137:05AM 11/20/20137:05AM supra supra The Administration of the Rule of Avoidable Consequences as , note 156. The view that the defendants’ intentionality might be taken taken be might intentionality defendants’ the that view The 156. note Indeed, in a revealing research study published in ORMICK C (Do Not Delete) Not (Do supra 159 notes 14–18and accompanying text. 2 C M . 485–87. . at Id Id See Supra Supra Nonetheless, Nonetheless, a court of justice sensing the need to express moral Indeed, Indeed, as we have seen, the traditional approach of the common . . . . Bauer, Undoubtedly also the deliberate and intentional, rather than merely inadvertent negligent,or character of in indignation the victim, and properly enters into mostthe ofconsideration how far the continuing torts victim may be required naturally to undergo trouble arouses and conduct. expense wrongful his ceasing by avoid himself to could defendant avoidthe afuture injury which feeling of 157 158 159 160 . at 139. I submit that although continuing wrongdoing may quite often overlap with reprobation reprobation towards the intentional tortfeasor may be less regard inclined the to victim’s failure to mitigate from liability. exempt the this The former of way typical achieving goal as sufficient reason to wholly was to regard the defendant’s intentional conduct as a factor the affecting reasonability of the victim’s conduct. into account, if only covertly, was expressed a few years earlier. M earlier. a few years expressed was covertly, if only account, into 1943, Ralph Bauer demonstrated that in cases of intentional wrongdoing, wrongdoing, intentional of cases in that demonstrated Bauer Ralph 1943, courts were tooften reluctant that infer the victim acted unreasonably, at extreme. very seem not did negligence latter’s the if least detail: detail: “Very seldom has a court clearly and expressly recognized that the rule of avoidable consequences affords any wilful or reckless less defendant than tothe merely negligent protection defendant.” to the acknowledged acknowledged by a commentator who investigated this question in great 155. 155. 2013] 2013] TWO SISTER DOCTRINES responsibility. comparative of principle IN SEARCHlaw has been OF to completely negligence REUNIONin exclude cases of the intentional wrongdoing. application This of has case, not contributory however, been regarding mitigation the of damages. 829 ADAR FINAL VERSION at at 134–35. The author did not offer to the exclude usual effect of the rule in such cases, but following: the admitted Id intentional doing, these categories raise different policy considerations and therefore should unreasonable. only only factor which determines whether a plaintiff has or has not failed to mitigate his loss, the only way to bypass the victim’s rule has been failure to define tothe mitigate as reasonable, or at least not clearly parallel, parallel, the accompanied by a clear exception which limited its avoidable scope of application consequences to doctrine non-intentional has torts or never breaches been of contract. (1943). (1943). 156. Ralph S. Bauer, Bauer, S. Ralph 156. Affected by the Degree of Blameworthiness of the Defendant 34176-qlr_31-4 Sheet No. 63 Side A 12/09/2013 15:27:08 A 12/09/2013 63 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 63 Side B 12/09/2013 15:27:08 163 The difficulty is is difficulty The 162 § 918(2) (1965) (the same rule was already ORTS T OF OF ) Part IV.B.4. IV.B.4. Part note 77, at 285 n.3 (criticizing the use of “heedless” as a vague ECOND (S infra supra supra , discussion ILLIAMS ESTATEMENT 161 See See In In cases where the self-negligence of the victim is obvious, On On its face, this seems to be a fairly sensible approach. Focusing Yet, the Restatement’s rule is still an all-or-nothing rule, as it limits however, however, this kind of a determination may seem quite artificial and thus problematic to carry out in a coherent manner. Perhaps in order to cope with this intentional difficulty, wrongdoing exception into the its basic torts. rule Restatement Section of 918(2) provides mitigation that the in rule explicitly denying compensation avoidable for consequences incorporated will not apply an to victim intentional “intentionally torts or unless heedlessly” the failed interests. to protect the victim’s self- 161. R Subsection. next the in wrongs continuous discuss I separately. treated be 161. 830 830 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM exclusively exclusively on the victim’s misjudgment and ignoring the defendant in role creating of the risk the that the victim will ultimately reaction err in to her the tort is neither fair nor efficient. term). term). 162. W Restatement). first the in present 162. 163. represents represents a disregard of the same values. to endeavored strike Restatement a the balance sensible between need to It seems that the Second deter intentional wrongdoing on the other. on the self-negligence of manifestations extreme discourage one hand, and the to the intentional wrongdoing exception negligence was not “heedless,” whatever that term may exactly mean. to cases where the victim’s exacerbated exacerbated when the tort is wrongfulness. committed Under with a full regime knowledge aims of of to comparative its divide responsibility, responsibility, which taking into values of solidarity and mutual consideration, it account is highly problematic to the communitarian ignore the nature and character of when the determining the defendant’s victim’s relative wrongful responsibility for conduct the avoidable losses. It is problematic, however, equally to ignore wholly the victim’s negligence, especially when it is extreme, since such conduct also avoidable avoidable loss would be divided between the intentional wrongdoer and the victim according to their comparative responsibility in bringing This rigidity prevents the court from apportioning liability in a flexible way that will be attuned to the relative importance of thepolicy considerations at stake. contradicting A superior solution in these cases would allow courts and at responsibility the post-tort stage. This would that mean the plaintiff’s juries to apply the principle of comparative 34176-qlr_31-4 Sheet No. 63 Side B 12/09/2013 15:27:08 B 12/09/2013 63 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 64 Side A 12/09/2013 15:27:08 , 167 OF OF OF OF ) ) . 641 EV HIRD HIRD 166 (T (T .L.R 164 KLA 37 O 37 ESTATEMENT ESTATEMENT ESTATEMENT Apportionment on the basis of of basis the on Apportionment 165 § 1 reporter’s note cmt. c (final paragraph) (2000). (2000). paragraph) (final c cmt. note reporter’s § 1 note 93, at 275 (acknowledging this weakness of the note 93, at 274 (recognizing the note 93,at 274 (recognizing unjustness in applying Using Comparative Fault to Replace the All-or-Nothing 11/20/20137:05AM 11/20/20137:05AM IABILITY supra supra supra supra , , L under a regime of comparative negligence intentional wrongdoing EMEDIES EMEDIES notes 139–44 and accompanying text. accompanying and 139–44 notes (Do Not Delete) Not (Do . 121 (1993) (supporting an intermediate approach which will allow flexible will flexible which allow approach . an 121 intermediate (supporting (1993) ,R ,R 2 Gail D. Hollister, Hollister, D. Gail EV OBBS OBBS See supra See PPORTIONMENT OF OF PPORTIONMENT .L.R see see also is not clear on this issue. While its general approach supports apportionment of any :A 2. A Tortfeasor’s Equal Opportunity to Mitigate Mitigate to Opportunity Equal 2. A Tortfeasor’s A common implicit assumption is that once a tort is committed, Where a continuing tort is concerned—for example, an ongoing Furthermore, Furthermore, even where the tort was not a continuing one, for AND ORTS ORTS nuisance or trespass—the defendant still has inprocess theloss resulting even after plaintiff’s the of accrual the cause control over the causal of action. In such cases, the istortfeasor no less capable than the victim of further occurring. loss from preventing It is that,thus clear as as long the tort continues, both the victim morally and accountable the tortfeasor for should any further be held taken loss reasonable measures that to avoid. each of them could have only only the plaintiff is in control of any ensuing risk to his or true. her always welfare. not is however, This, 166. mitigation doctrine). 166. apportionment apportionment in some cases of intentional wrongdoing). The R comparative negligence, when the harm is indivisible, seems much fairer iscomparative negligence, the when seems fairer much harm indivisible, than imposing the burden of preventing the further loss only victim. upon the The solution is also more loss. theavoid to an effort efficient, to make the plaintiff) only (not parties since it incentivizes both mitigation to these cases: “[i]f . . . theminimize defendant damageshad an he equal doubtful”). seem hasand liability his continuingreducing for grounds caused,the plaintiff, opportunity and to at a cost no greater than would be required of the LotteryImposed in Intentional Torts Suits in Which Both Plaintiffand Defendant Are at Fault 46 V indivisible indivisible loss flexibly under comparative responsibility principles, in this specific context the drafters preferred not to “substantive law” take rather a than on firm principles of stand, apportionment. leaving T R the issue to be resolved under 164. The idea that that idea The 164. should not automatically preclude apportionment Should was Comparative Ever Responsibility Apply to voiced Intentional Torts? by William J. McNichols, T 2013] 2013] TWO SISTER DOCTRINES about the victim’s loss. Such apportionment reckless. should even “heedless” or seems conduct latter’s the when be IN allowed even SEARCH OF REUNION 831 ADAR FINAL VERSION (1984); (1984); 165. D 165. example, example, when the defendant committed causing an accident, a the tortfeasor may still single be in act a position to prevent of the from incurring victim loss.additional In these it cases, seems utterly negligence all liability. from tortfeasor the exempt to inefficient, as well unjust, as 167. D 167. 34176-qlr_31-4 Sheet No. 64 Side A 12/09/2013 15:27:08 A 12/09/2013 64 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 64 Side B 12/09/2013 15:27:08 (for example, by John's calling an ambulance ambulance an calling John's by example, (for ex post In In these situations, the values of solidarity and cooperation In my view, this is a serious deficiency. Instead of treating the Consider Consider another example. Tim is a highly esteemed businessman Assume, for example, that following a certain accident caused by parties parties as complete strangers, the responsibility law towards should their recognize victims tortfeasors’ even tortfeasor causing an initial injury or loss should be toexpected the offer in the post-tort victim reasonable stage. assistance (including financial aid) in order to prevent A further deterioration of negligently fails to do the so—especially at the victim’s request—as in the victim’s second situation. example—his default should be taken into If account just as the the tortfeasor consequential loss suffered by Tim. suffered loss consequential underlying comparative require responsibility the negligent defendant to share responsibility with the victim for any further loss that both could have avoided. Thus, in the first illustration, John should be expected to call an ambulance if, for some reason, the plaintiff fails to do so. In the second example, the newspaper should be expected to double-check its and Tim’s complaint following atoinformation correction.make Under the mitigation doctrine, however, the newspaper is not required to prove loss. only Its reputational Tim’s to mitigate steps reasonable took that it himself. by lossthe could mitigated have Tim that prove is to concern consequences consequences himself). and was nominated as a director in a very profitable company. Assume that Tim is defamed company’s board by of directors to refute the a allegations against him. Out certain newspaper of pride, Tim refuses to do so, but instead asks and the newspaper to double- is asked by check its sources and to issue the an immediate apology. The newspaper is slow to do so and Tim’s is revoked nomination by the causing company, him a substantial economic loss of censured profit. for failing to While actively Tim refute the may allegations newspaper well against be him, the might have had an equal opportunity to prevent the John’s John’s negligence, Dana is seriously injured, but for some reason she refuses to recognize the gravity of the ambulance. situation and does Under not call the an doctrine negligent, of then mitigation, she if cannot recover Dana’s damages conduct suffers as a for result—for example, is death resulting from any loss of blood that aggravation she could have been avoided if she received prompt medical attention. This completely ignores the John's responsibility for causing the accident in the first place, however, and for failing to minimize its harmful 832 832 Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM 34176-qlr_31-4 Sheet No. 64 Side B 12/09/2013 15:27:08 B 12/09/2013 64 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 65 Side A 12/09/2013 15:27:08 Michael B. Kelly, B. Kelly, Michael See . It has been criticized, criticized, been has It 170 171 The latter approach has stare decisis stare 169 , 576 F.2d 524, 530 (3d Cir. 1978) (“Where both the 168 , 47 S.C. L. Rev. 391, 401 (1996) (“Courts that recite the 11/20/20137:05AM 11/20/20137:05AM Whenever they come about, however, both both however, about, come they Whenever 172 note 170, at 395 (expressing fear that if taken seriously, “[t]he equal notes 118–20 and accompanying text. accompanying and 118–20 notes (Do Not Delete) Not (Do supra supra 2 See supra See This, however, has not been the traditional approach of the common common the of approach traditional the been not has This, however, Admittedly, Admittedly, equal opportunity cases may be rarer in tort cases than Where Where the plaintiff’s failure to mitigate can be attributed, at least 3. Negligent Reliance on a Tortfeasor’s Poor Advice Poor Advice Tortfeasor’s on a Reliance 3. Negligent 171. Kelly, Kelly, equal opportunity exception often have alternative justifications available, usually finding that reasonably.”). acted fact in plaintiff the 171. 172. Arguably, an analogy can be drawn between breach of contract cases and and cases contract of breach between drawn be can analogy an Arguably, opportunity exception could supplant the by avoidable performing simply to all the plaintiff damages could prevent case. contract defendant The consequences doctrine in almost every contract”). the 172. trespass. or nuisance as such torts continuing law. Courts facing altogether this or, as kind was often of done regarded argument in the defendant’s cases equal have opportunity to of mitigate either intentional as negating wrongdoing, the rejected unreasonableness of it the victim’s conduct. however, for having the effect of eliminating any incentive on the part of on the of any part incentive of the having effect eliminating however, for damages. their to mitigate promisees aggrieved in contracts cases. contract law, however, the exception is rarely considered considered is rarely exception the however, law, contract 168. This is evidently so in cases in which the defendant’s costs of mitigation are lower lower are of case mitigation famous of the to costs traced defendant’s usually the is which in exception cases in so opportunity equal evidently the is This 168. contracts, than or equal to those of the plaintiff. Under a regime of comparative negligence, however, the question of who is the In least-cost avoider is isbased responsibility on the that assumption it is just more not to both encourage parties to take conclusive. A regime of comparative due care than to ask them to assesswhich of them is the cheapestcost avoider. 169. 170. S.J. Groves & Sons v. Warner Co. plaintiff and the defendant have had equal opportunity to reduce the damages by . . act. the . same [t]he duty to mitigate damages is not primarily applicable to where the perform party a whose duty contract it has is equal opportunity for performance . . . .”). Even in 2013] 2013] TWO SISTER DOCTRINES to mitigate. failure victim’s IN SEARCH OF REUNION 833 ADAR FINAL VERSION Defendant’s Responsibility To Avoidable MinimizeConsequences Doctrine Plaintiff’s Loss: A Curious Exception to the been adopted by some courts in contracts cases. parties—rather parties—rather than the plaintiff alone—should be encouraged to reasonable take steps to prevent further When avoidable both losses parties fail from to occurring. do so, according to apportioning their comparative fault the seems to loss be a between much more them sensible solution than to let the loss lie where it falls. Among other factors, the court or jury should give considerable weight to the relative ease loss. further the victim’s mitigated could have parties with the of which each 34176-qlr_31-4 Sheet No. 65 Side A 12/09/2013 15:27:08 A 12/09/2013 65 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 65 Side B 12/09/2013 15:27:08 control control over the rule of mitigation is not the rule of mitigation . The present category is different. Here, I even even when this is clearly not the case, The The problem is presented as follows. A tort is an unlawful act of 4. Excusable and Foreseeable Self-Negligence Self-Negligence and Foreseeable 4. Excusable Subsections 2 and 3 considered situations in which even after the Assuming that, in discovering the defect, the consumer has become To be sure, to resolve this difficulty, a court or jury may decide to always defensible on moral or economic grounds. grounds. or economic on moral defensible always will discuss a mitigation much cases, regardless wider of whether concern, or ability which not to the prevent the is defendant plaintiff from has suffering any always any further loss. economic relevant analysis jargon, To the problem use is not that in the tortfeasor may be the “least-cost ofavoider” the victim’s avoidable loss. Rather, the claim is that circumstances. circumstances. This kind of solution is also problematic, however, as it fails to give sufficient weight to the victim’s role in bringing about his personal injury. The better view, which squares with the principles of cooperation, solidarity, and efficient deterrence, would be to allow the court to apportion this indivisible loss between the parties, according to it. in causing negligence comparative their commission of the tort, the defendant still has some kind of the victim’s avoidable loss severe severe personal injury. Is the consumer entitled to any compensation at loss? consequential this for all aware both of negligence, or breach of his warranty—and of his initial property potential loss, his subsequent negligent use causes of the device constitutes a failure of to mitigate. action—one His sounding personal injury in consequence for which he would is solely to blame; in therefore this case, as well as in be many other cases of considered products liability, an this resultundesirable. seems avoidable both unfair and regard the consumer as having acted reasonably under the 834 834 partially, to an over-reliance on the lead results. to odd may doctrine defendant’s mitigation the of application advice, the negligent promise or Assume, for example, that, inrealizes that a an electrical products Q device U he liability I purchased N case, properly. has N He informs the ceased manufacturer a (or I the to supplier, P for that consumer function matter) I A C of the problem. Instead of replacing the device Las immediately it should A W R E have, Vthe latter gives the I consumer instructions for solving the Eproblem. W Operating the device in a negligent manner—for example, in deviation from the instructions given—the consumer is electrocuted and suffers 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM 34176-qlr_31-4 Sheet No. 65 Side B 12/09/2013 15:27:08 B 12/09/2013 65 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 66 Side A 12/09/2013 15:27:08 a 176 173 done, the rtainties rtainties of the perpetrated by the the by perpetrated Finally, after having itigation itigation decision). Compare, in assess the nature and the the and nature the assess ways to minimize these 174 § 918 (1965). (1965). § 918 reasonably reasonable These are not very easy decisions. decisions. easy very not are These 175 ORTS T note 152, at 277 (“[T]he plaintiff must estimate the total OF OF ) elect one of them. of one elect 11/20/20137:05AM 11/20/20137:05AM supra ECOND (S reasonably (Do Not Delete) Not (Do 2 determine how much to invest (in terms of money, time, and ESTATEMENT Id. Id. First, First, the victim is required to The main problem with mitigation is that it gives insufficient . following: the states Restatement the to e comment example, For . R . . Whether Whether or not [the victim] is unreasonable . . . depends upon the amount of harm that may . . . result , the chance that the harm of . amount or . money will . it , effort required to his provide and ability the likelihood result if nothing is successful. be will measures the that § 918 cmt. e (recognizing the the complexity involved (recognizing e cmt. in 918 § a m 176 173 174 175 extent extent of the risks latent in the wrong or the injury already suffered. They all involve the weighing and balancing of numerous factors. decisions. decisions. 2013] 2013] TWO SISTER DOCTRINESone person that violates the protected interests of another person. After a tort IN is committed, SEARCH there is an consequences. obvious The mitigation doctrine need strives to fulfill this to purpose by limit OF its detrimental encouraging REUNION victims to take reasonable steps to avert further loss, they lest be denied compensation for such losses. The does doctrine, however, not 835 tell potential victims in Hence, advance following what the commission a of reasonable a tort, step the is. what victim to needs do to in decide the face of the tort and requires its initial the impact. plaintiff This, in to turn, undertake a series of complicated and risky ADAR FINAL VERSION decided decided on a reasonably specific means of effort) on mitigation, preventive measures. the victim needs to evaluations, evaluations, nor is the problem that the doctrine having sanctions victims for made the necessary if wrong the law is to choices. promote solidarity and mutual between consideration members of society, and Sanctioning discourage unnecessary social waste. self-negligence problem? is the then What is act ofconsequence an unlawful foreseeable and direct Second, the victim must examine risks and to Anyone, including a law and economics professor or a remedies expert, may err in the process of making mitigation, such evaluations. however, is The problem not with that it requires victims to make those Id. the context, contractual Bates, amount amount of the projected losses, measures. . . . then calculate This the rough total formulaworld.”). business cost is of complicated all in potential practice mitigatory by the unce weight weight to the fact that the very need to face these complex decisions is 34176-qlr_31-4 Sheet No. 66 Side A 12/09/2013 15:27:08 A 12/09/2013 66 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 66 Side B 12/09/2013 15:27:08 179 supra supra , , 93 Q.J. OSNER P See but it is also morally 178 This result is not only only not is result This 177 On Moral Hazard and Insurance Very frequently, however, it will it will however, frequently, Very 181 note 31 and accompanying text. accompanying and 31 note Steven Shavell, Shavell, Steven See supra See See See generally Part IV.A.3. IV.A.3. Part note 69 and accompanying text. text. accompanying and 69 note Often, however, a jury or a court may have no doubt that the See supra See Id. See supra See 180 To be sure, cases will arise in which the plaintiff’s failure to It isIt true the that goes a long of towardsmitigation doctrine way the . . 541 (1979) (discussing the moral hazard problem). moral hazard the .(1979) 541(discussing 177 CON tortfeasor tortfeasor not be held liable for the clearly foreseeable consequences of his wrongdoing, just as would be the case if the “intervening cause” had tortfeasor? of another act thebeen wrongful mitigate reflects an obvious disregard for the legitimate interests of the tortfeasor in minimizing liability—for refrains from calling the fire department to put out a example, fire on his property where the the defendant. by caused negligently plaintiff plaintiff plaintiff has indeed failed to take reasonable steps in mitigation (or that clearly unreasonable steps were taken which aggravated the loss). this stage, no weight is given to the At fact that the victim’s mistake would wrong. this is view, theIn defendant’s a my but for place taken not have serious deficiency. automatically cease with every mistaken decision of his victim. Indeed, A it was the tort which obliged the plaintiff to face the risk of making tortfeasor’s the erroneous mitigation responsibility decision in should the first not place. Why should the be obvious to the jury that the failure not may to mitigate to failure a Such misjudgment. negligent, mitigate yet innocent, was the result of an E 836 836 tortfeasor against the victim of the tort. As we have seen, a plaintiff’s failure to mitigate is treated as if avoidable it were loss the sole suffered legal cause by of the the Q victim. U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM order order to comport with the duty to mitigate is relatively lenient. problematic problematic in terms of the communitarian values underlying a regime of liability which recognizes, in principle, the fault. comparative of possibility basis the on responsibility to apportion victim. The standard of conduct with which a victim must comply in incoherent incoherent with general principles of liability, note 108, at 172–73. 178. 178. Moreover, Moreover, the courts will not in any way sanction a victim for the fact that his or her reasonable efforts to minimize the loss have failed. eventually 181. This is known as the “moral hazard problem,” which is often emphasized in sources sources in emphasized often is which problem,” hazard “moral the as known is This 181. dealing with mitigation in contract law. The problem injuries, where potential victims ishave a strong incentive to less avoid injury. acute in the realm of personal 179. 179. 180. This rule applies even when the plaintiff’s failed efforts increase, rather than than rather increase, efforts failed plaintiff’s the when even applies rule This 180. decrease, the plaintiff’sloss. 34176-qlr_31-4 Sheet No. 66 Side B 12/09/2013 15:27:08 B 12/09/2013 66 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 67 Side A 12/09/2013 15:27:08 185 L.J. 1466 107 (2007); (2007); 107 247 S.W.3d 1 ALE ALE EALTH , 87 Y Solène Le Pautremat, &H .L.Q. 205 (2006). (2006). 205 .L.Q. , 20 J.L. 184 OMP &C See generally L ’ McKew McKew v. Holland & Hannen & Cubitts NT God v. the Mitigation of Damages Doctrine: , 55 I 55 , , Wilcut v. Innovative Warehousing, courts have while some Consequently, In light of the fact that the defendant 186 183 Alternatively, imagine a case in which a a which in case a imagine Alternatively, See, e.g. 11/20/20137:05AM 11/20/20137:05AM 182 note 125, at 154–60. , the House English of that Lords admitted explicitly “it is not at Jennifer Parobek, Note, Note, Parobek, Jennifer supra McKew (Do Not Delete) Not (Do 2 , [1968] UKHL 9, 3 All E.R. 1621. Walter v. Wal-Mart Stores, Inc., 748 A.2d 961 (Me. 2000). See generally See See See Closely Closely analogous are the archetypical cases in which an injured A few illustrations may be helpful to understand the problem. Medical Medical Care, Freedom of Religion, and Mitigation of Damages victim victim neglects to receive medical treatment recommended operation, or which then aggravates her medical situation. refuses to undergo a patient patient is given the wrong medication by fails a to negligent see pharmacist, a but doctor promptly upon realizing that with something is it, wrong a delay which victim’s in medical turn situation. leads to a drastic aggravation of the 186. Whittaker, Whittaker, (1978). 186. Mitigation of Damage: A French Perspective French A of Damage: Mitigation which patients who have refusedperformed operation die as a result. to Suits brought for receivewrongful death following such tragic a blood events were sometimes transfusion rejected, but in following other cases a courts have refusal negligently refused as a to failure to define mitigate. patients’ (Mo. Ct. App. 2008) (reflecting the contradicting views opinions). in the majority and the dissenting Why Religion Be Should a Considered Pre-Existing Condition 185. Most famous are the “Jehovah’s Witnesses” or “Christian Scientists” cases, in in cases, Scientists” of “Christian or facts the on Witnesses” based is “Jehovah’s example in the The are Indeed, 182. (Scotland) Ltd. famous 183. 184. all unlikely or unforeseeable that an active man who has suffered such a disability will Most take some quite unreasonable risk[;]” notwithstanding, the House of at Lords 1623 E.R. 3 All consequences.” the for went liable the hold defender cannot he on does if he “[b]ut to rule that Reid). (Lord 185. 2013] 2013] TWO SISTER DOCTRINES only be foreseeable from the perspective of shoes a IN reasonable of man in SEARCH the the excusable. potential It is not clear why tortfeasor, in such cases, which seem OFto but be the vast apply. should always mechanism strict same the majority, it REUNION may often be considered Imagine, for 837 example, a case in which a down staircase, a falls and slips victim, inadvertently injury, tort a from personal while still recovering thus worsening her medical situation and causing herself additional (or separate) personal loss. ADAR FINAL VERSION Note, denied denied compensation in cases in which such refusal was deemed clearly foolish or unreasonable, others have awarded full compensation when wronged the victim in the first place, should be is denied any itcompensation for the so additional loss obvious which could that the careful? been more she had been avoided have victim issue on a case-by-case basis. a on issue case-by-case Unlike Unlike some continental jurisdictions, which sharply refuse to apply the approached the have courts in cases, these American principle mitigation 34176-qlr_31-4 Sheet No. 67 Side A 12/09/2013 15:27:08 A 12/09/2013 67 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 67 Side B 12/09/2013 15:27:08 , But EETON undergo &K ROSSER ROSSER note 24, at 474. supra , 187 190 The words of Dean Prosser are here as relevant 189 First, such an artificial conclusion may also be unjust unjust be also may conclusion artificial an such First, 188 Comparative Negligence . Id In In my view, this approach is problematic because it forces courts Interestingly, Interestingly, this dilemma has actually disturbed courts and juries note 17, at 469. I believe that to a great extent this holds true with respect to mitigation to charge the defendant with the plaintiff’s share of the fault than consequencesto charge the plaintiff with the of defendant’s; and it is his no better policy to relieve the negligent plaintiff of all responsibility for his injury than it is to the defendant. negligent relieve [T]he [T]he real objection to the last clear chance is that it seeks hardships of to contributory negligence by shifting the alleviate the entire loss due to the fault both toof theparties from plaintiff the defendant. reasonable no more It is still Tanberg v. Ackerman Inv. Co., 473 N.W.2d 193, 196 (Iowa 1991) (post-accident failure to to failure (post-accident 1991) (Iowa 196 193, N.W.2d 473 Co., Inv. Ackerman v. Tanberg 190. 190. only only for his own misdeeds, but also for the Second, plaintiff’s self-negligence. instead of exposing the victim’s conceal it, thus error, sending the such wrong message to a future potential victims. decision will in which Indeed, this the eminent raised criticism the writers exactly was past against the “last clear chance” doctrine, which under contributory negligence could shift the entire loss from the negligent plaintiff to the negligent defendant. and unfair towards the defendant, who will be required to account not into into a very difficult “black or decide white” choice. that The the court plaintiff must compensation either behaved for irresponsibly, the and aggravation; then or, determine that such conduct is not in deny unreasonable. Such a determination, order any to cancel not do unfortunately which avoid problems two turn in creates however, this result, each other out. in cases where negligence, they which nonetheless did not seem to justify a were complete denial presented of with the clear victim’s claim. evidence of Thus, in self- a case brought in 1888 before the 188. In the context of contributory negligence, it was said that “[c]ourts have become become have “[c]ourts that said was it negligence, contributory of context the to a failure to mitigate); Badeaux v. State, Dep’t of Trans. & Dev., 690 So. 2d , 205–06 (La. In Ct. App. 1997) (failure to stop obsessive consumption of food not a failure to mitigate).cf. “fault”). as jury the by assessed legitimately was weight lose 188. more reluctant to rule that the plaintiff’s conduct is negligent as a matter of law, and juries are notoriously inclined to find that there has been no such negligence.” P 187. Small v. Combustion Eng’g, 681 P.2d 1081, 1085 (Mont. 1984) (refusal to to (refusal 1984) (Mont. 1085 1081, P.2d 681 Eng’g, Combustion v. Small 187. a knee with surgery 92% rate, success to leading a disability, not permanent found to amount 838 838 a result. too harsh seemed this Q U I N N I P I A C L A W R E V I E W 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM 189. Prosser, Prosser, supra of damages decisions. 189. as they were in 1954, when he criticized that doctrine: doctrine: that he criticized when in 1954, were as they 34176-qlr_31-4 Sheet No. 67 Side B 12/09/2013 15:27:08 B 12/09/2013 67 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 68 Side A 12/09/2013 15:27:08 , [1970] P. 172 B.C. Elec. Ry. Co., Ltd. v. Loach, Loach, v. Ltd. Co., Ry. Elec. B.C. cf. , [1970] P. at 178. Though formulated in in formulated Though 178. at P. [1970] , ); Gulf ONCLUSION Carlsholm V. C at 173. Then, a few hours later, while changing the original 11/20/20137:05AM 11/20/20137:05AM The dilemma facing the Court was phrased in the clearest terms 192 Id. , and partly by the further negligence of A, and, on the basis Id. 191 Carlsholm (Owners) v. Calliope (Owners), The Calliope note 41, at 331 (mentioning (Do Not Delete) Not (Do 2 supra supra , The The conclusions from the positive, theoretical and normative In In my view, in all of these cases, when the “black or white” breaks the chain of causation between it and the casualty, and makes it therefore too too therefore it makes and casualty, the and it between causation of chain the breaks remote? Or can the consequential damage Court was caused find, partly by if the which original was it casualty, continuing the effect thinks of it of right such finding, on make a the further apportionment, damage? consequential facts, the for or sub-apportionment, that of liability the Is the necessary result, consequential damage fails as altogether, on a the ground matter that his further of negligence law, that A’s claim in respect of the at 178 (emphasis added). While acknowledging that apportioning consequential loss in in loss consequential apportioning that acknowledging While added). (emphasis 178 at EDGWICK 192. There is only one judicial decision that actually implemented comparative comparative implemented actually that decision judicial one only is to doctrine There chance clear last the on (relying B.C.) from taken (appeal (P.C.) 719 A.C. 1 [1916] impose liability on the defendant for operating a plaintiff). negligent train clearly the to with liability from entirely defective it releasing brakes as opposed to 192. negligence mechanism to a consequential loss could have avoided. which at the post-tort stage only [1970] the 1 All victim E.R. 624. The case involved a first Seine,collision whichbetween was two caused ships by in the defendant’sthe River negligence, and which caused an initial loss property to the plaintiff’s ship. plan and seeking refuge in a certain harbor, the captain of the ship plaintiff’s unsuccessfully performed a difficult and apparently negligent maneuver loss to the which ship. property caused a further separate Id. such a situation may be rarely justified, the judge nevertheless went on to divide the second two the ships. of owners the between loss by Justice Brandon: Brandon: Justice by victim victim in the defendant—as reflected in his overall conduct post-tort both before and after the stage tort. the of completion with the contributory fault of the solution solution seems unjust, instead of either denying recovery or allowing it in full, courts and juries must be allowed to apportion the loss between way as in shouldthe same out be carried This apportionment the parties. in the pre-tort stage, i.e., by comparing the contributory fault of the analysis analysis of the mitigation of damages can dichotomy be briefly summarized. between First, on the positive comparative negligence and 191. Gulf, Colo. & Santa Fe R.R. v. Mannewitz, 8 S.W. 66, 67–68 (Tex. 1888); 1888); (Tex. 67–68 66, S.W. 8 Mannewitz, v. R.R. Fe Santa & Colo. Gulf, 191. S 2013] 2013] TWO SISTER DOCTRINES Supreme Court of Texas, although the plaintiff’s neglect aggravated his personal injury, the Court affirmed the jury’s decision to INregard his self- SEARCH negligence as excusable, thus permitting him OF to recover for loss. consequential REUNION his entire 839 ADAR FINAL VERSION terms of legal causation, this decision seems to deal with essentially the same problems which which problems same the essentially to deal with seems this decision causation, of legal terms case. mitigation any in arise 34176-qlr_31-4 Sheet No. 68 Side A 12/09/2013 15:27:08 A 12/09/2013 68 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 68 Side B 12/09/2013 15:27:08 The proposed solution to the shortcomings of the mitigation Finally, on the normative level, the question of article level, the on examined Finally, the normative Second, Second, on the purely theoretical level, this Article has argued that doctrine, doctrine, in terms of fairness, efficiency and coherence with the general theory of causation, should be evident by now. Instead of allocating the or tortfeasor the to either tort completed a from emanating loss avoidable courtsto should juries the be and allowed tovictim, divide responsibility for such a loss, just as they are permitted to do so negligence when preceded the the plaintiff’s tort. Courts have consistently refused to view the subsequent fault of a second wrongdoer as breaking the chain of satisfactory satisfactory normative support to the mitigation today. doctrine as it stands It concluded sufficiently robust justification that for the distinction between the pre-tort and thesis post-tort self-negligence. Denying a tort victim ultimately any compensation for a fails to loss that provide would not have a occurred but for the defendant’s can wrongdoing be justified only when the plaintiff’s actions were so negligent extremely as tort to signal disrespect for was unintentional, and when the the values of solidarity and mutual consideration. However, when the tort was intentional or when the plaintiff’s self-negligence was neither inexcusable nor unforeseeable, a be cannot supported. the victim toloss avoidable entire the exception, blind rule that allocates, without given their very distinct approaches to the allocation to which support seem them, each the asof as the philosophies rival well of avoidable loss, coexistence of these two doctrines under the same branch of law could law. tort within tension theoretical a serious to create been expected have The fact that this tension has not led to a doctrines, serious conflict and between the that mitigation retains its puzzle. doctrinal The independence, integrative thesis is that a I have offered attempted this to puzzle by the emphasizing under normative significance, a theory of answer comparative responsibility, of the temporal distinction between pre-tort self-negligence. and post-tort whether, and to what extent, the integration thesis can provide fully 840 840 level, contrary to the conventional understanding, these doctrines are in fact very similar. namely, Both are the designed allocation to defendant resolve and of a negligent plaintiff, a and yet, avoidable mitigation Qis single not Ua form I problem, of loss N comparative negligence. NJust like contributory between negligence in I the past— P I a A C blameworthy and L A W contrary R E any juries and courts denies which to mechanism an all-or-nothing employs V I E comparative W negligence—mitigation parties.the between responsibility apportion to discretion of damages 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM 34176-qlr_31-4 Sheet No. 68 Side B 12/09/2013 15:27:08 B 12/09/2013 68 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 69 Side A 12/09/2013 15:27:08 , 194 ILLIAMS , at 132; W 132; at , 35 note note supra , URROWS B See udgment. 11/20/20137:05AM 11/20/20137:05AM 195 ,Penzell v. State, 466 N.Y.S.2d 562 (N.Y. Ct. Cl.1983). Ct. (N.Y. 562 N.Y.S.2d 466 State, v. ,Penzell (Do Not Delete) Not (Do If so, they clearly should not commit themselves to such 2 193 , e.g. , See Does Does the reform proposed by the Third Restatement require a A A final caveat is in place. The duty to mitigate is a legal duty of I therefore conclude that the solution professed by the Third note 77,at 293. [T]he capability of the judicial system . . . to appraise such a claim. Also at work is is work at Also claim. a such appraise to . . . system judicial the of capability [T]he that as involving parties, injured compensating in law tort of role the of appraisal an role does, not only reason, but also fairness, and predictability, even deterrence of the summoning is choice a policy decision ultimate [T]he . acts. . . wrongful future most sensitive and careful j legislative legislative intervention? I believe that it does not. In most states it can be carried out by adopting a liberal—and of often literal—interpretation the terms “fault” or “negligence” as they appear in the comparative fault legislation, which will allow these term to cover both pre-tort and post- self-negligence. tort 193. 193. 2013] 2013] TWO SISTER DOCTRINES causation between a plaintiff’s wrongdoer. IN loss SEARCH and the fault of OF a REUNION preceding 841 ADAR FINAL VERSION supra supra 195. As mentioned above, in the few states which have adopted the UCFA’s approach, a a approach, UCFA’s the adopted have which states few the in above, mentioned As 1984). (N.J. 763 755, A.2d 478 Cillo, v. Procanik 195. failure in to included is damages the mitigate of explicitly definition in “fault.” Interestingly, England, two important writers offered to adopt such a wide interpretation to the term “fault” Act (1945). Negligence Contributory in the 194. Exercising judicial discretion in this context must presume: presume: must context this in discretion judicial Exercising 194. extreme extreme social importance. As such, appropriate it legal must sanction. be backed The up aim with of an this article has not been to well well as affect the goal of tortfeasors promoting and efficient potential deterrence victims. of The potential main factors culpability manifested are by the each party’s degree contributory fault, of the ability of each of the parties to eliminate the risk posed by the tort, and the extent to which the plaintiff was aware of the kind and magnitude of the risk to which the tort exposed her. balanced each against notother only when deciding whether the plaintiff These factors should behaved unreasonably—as be they indeed are weighed under current and doctrine—but also once an affirmative answer is given to that capable question. of Courts are taking these expediency. and social justice both of service in the them balancing conflicting considerations into account and an approach when the subsequent fault is that of an innocent victim. victim. innocent of an that is fault subsequent the when an approach Restatement, namely, to abolish the subsume doctrine it of under mitigation a so general clearly as regime warranted. Mitigation to of must be abandoned, comparative or at responsibility, least restricted is in the scope of its application, so as to allow courts into and account juries all to relevant take factors which may tip the scales of justice as 34176-qlr_31-4 Sheet No. 69 Side A 12/09/2013 15:27:08 A 12/09/2013 69 Side Sheet No. 34176-qlr_31-4 34176-qlr_31-4 Sheet No. 69 Side B 12/09/2013 15:27:08 §3 IABILITY L PPORTIONMENT OF :A ORTS T OF OF ) HIRD (T ESTATEMENT R See 196 Many Many established legal principles have undergone considerable 196. 196. 842 842 question the validity of this assumption, but of the the gravity and sanction that merely between match-up aneed sensible for to emphasize the plaintiff’s default. Indeed, the fact that a victim even has acted after carelessly, having Q U become I aware N militate N of against allowing I the her P victim to I cause ask Afor of Can apportionment. action, timing L may The A often W of R E the considerable Vbut weight, it should not always be considered a conclusive I E plaintiff’s W negligence factor. should definitely be given 31:783 [Vol. adar adar final version2 (Do Not Delete) 11/20/2013 7:05 AM reporter’s note cmt. b (2000) (“This Section abolishes doctrines that give all-or-nothing effect all-or-nothing that give cmt. doctrines bnote abolishes reporter’s (“This Section (2000) to based of certain types on the timing plaintiff’s of negligence and the defendant’s plaintiff’s negligence. Instead, the timing of the responsibility.”). of plaintiff’spercentages assigning and defendant’s negligence are factors for evolution, evolution, while others negligence has evolved over time and have has transformed into comparative not. negligence. Its sister, the mitigation of damages doctrine, has not. The It is doctrine time of for the contributory two comparative sisters to responsibility. reunite under happen. this make we that age our in law tort of a development harmonized It concept of is imperative for the continued 34176-qlr_31-4 Sheet No. 69 Side B 12/09/2013 15:27:08 B 12/09/2013 69 Side Sheet No. 34176-qlr_31-4