DEFENSES IN GENERAL THE KEY DEFENSES: CONTRIBUTORY NEGLIGENCE ASSUMPTION OF RISK BURDEN OF PROOF: ON THE D METHODOLOGY RE CONT. NEG.: EXAMINE COMMON LAW RULES SHOW SHIFT TO COMPARATIVE FAULT SEE EFFECT ON COMMON LAW RULES

DEFENSES: CONTRIBUTORY NEGLIGENCE BUTTERFIELD THE COMMON RULE LAW: CONTRIBUTORY NEG. AS TOTAL BAR EXPLORING THE RATIONALES: IS THE DECISION RIGHT? 1. “ENTIRELY FROM HIS OWN FAULT” 2. WAS D NEGLIGENT AT ALL? CONCLUSION: EXPECT CHANGES

COMPARATIVE FAULT HYPO: TWO-FAULT AUTO ACCIDENT P PRESCOTT AND D DORFMAN COLLIDE P’S DAMAGES: $100,000 D’S DAMAGES: $50,000 P: 60% NEGLIGENT D: 40 % NEGLIGENT HOW MUCH WILL P RECOVER?

THE ACCIDENT (cont.) DEPENDS UPON THE JURISDICTION: PURE OR MODIFIED SYSTEM NEW YORK: P BEARS 60% OF HIS/HER LOSS RECOVERY: 40% (.4) x 100,000= $40,000 D BEARS 40% OF HIS/HER LOSS RECOVERY: 60% (.6) x 50,000=$30,000

ANOTHER ACCIDENT HYPO: THE 3-PART ACCIDENT A:10% NEGLIGENT; $100,000 DAMAGES B AND C: 45% NEGLIGENT EACH A SUES B AND C? HOW MUCH CAN A RECOVER?

PRACTICALITIES OF COMPARATIVE FAULT SOLLIN (274): EFFECT OF SYSTEM ON JURY HYPO: THE UNDERGROUND TANK WASSELL (253): COMPARATIVE FAULT IN ACTION POSNER’S CRITICISM POSNER’S METHOD (NOT FOLLOWED BY MOST) RESTATEMENT’S “POSITION”