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

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
Every trial lawyer is well aware that juries often do in fact allow recovery in cases
of contributory negligence, and that the compromise in the jury room does result in
some diminution of the damages because of the plaintiff’s fault. But the process is
at best a haphazard and most unsatisfactory one. There are still juries which
understand and respect the court’s instructions on contributory negligence, just as
there are other juries which throw them out of the window and refuse even to reduce
the recovery by so much as a dime. Above all there are many directed verdict cases
where the plaintiff’s negligence, however slight it may be in comparison with that
of the defendant, is still clear beyond dispute, and the court has no choice but to
declare it as a matter of law.
Prosser, Comparative Negligence, 51 MICH. L. REV. at 469.
Many observers in the middle of the 20th century reported that when faced with a slightly
negligent plaintiff and a very negligent defendant, juries were appalled by the draconian
consequences of the contributory negligence rule. So they just ignored it and reduced plaintiffs’
recoveries by their proportional fault. See, e.g., Harry Kalven, Jr., The Jury, The Law, and the
Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 167-68 (1958); Lewis F. Powell, Jr.,
Contributory Negligence: A Necessary Check on the American Jury, 43 A.B.A.J. 1005, 1006
(1957). In fact, in a before-and-after study of the contributory negligence rule, Professor Maurice
Rosenberg concluded that there was no change in the size of plaintiffs’ recoveries after the
abolition of the rule, indicating that juries had been factoring in plaintiffs’ negligence all along.
Maurice Rosenberg, Comparative Negligence in Arkansas: A “Before and After” Survey, 13 ARK.
L. REV. 89, 103 (1959).
6. Contributory negligence outside of the courtroom. Of course, even in the first half of the
twentieth century, when there were far more trials than there are today, relatively few cases ever
got to juries. The pervasiveness of settlement undermined the all-or-nothing character of the
contributory negligence rule. A standard outcome in the settlement process was for settlement
values simply to be discounted by the probability that the jury would return, or that the judge
would insist on, a finding of contributory negligence. Risk-averse parties—often the plaintiffs—
would have been willing to accept especially steep discounts from their damages in return for
escaping the possibility of a devastating contributory negligence finding.
The limited application of the contributory negligence rule in settlement was perhaps most
apparent in the work of the claims adjusters who settled tort claims for insurance companies. In
his classic sociological study of insurance claim adjusters, Settled Out of Court, Hugh Laurence
Ross reported how they settled cases in the event of a plaintiff’s negligence in contributory
negligence states:
[A]djusters generally treat questionable liability [including situations where the
plaintiff might be negligent] in bodily injury claims as a factor to lower their
evaluation, but not to extinguish value. There is variation from office to office and
from adjuster to adjuster in how this is done. Impressionistically, departure from
the formalistic [contributory negligence] approach seems greatest in the
metropolitan offices, and among adjusters who have been employed longest and
who are the most legally sophisticated. The new employees, the supervisors, and
the more naïve men seem more ready to endorse formalism in the matter. . . .
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