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

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
The facts appearing in [various data on insurance settlements] . . . indicate . . . that,
controlling for liability and injury, the proportion of claimants recovering in the
comparative negligence states is not higher than that in contributory negligence
states. Although the average recovery in paid cases is somewhat higher in the
comparative negligence states, the difference is not significant. It is not possible to
press this analysis further with the number of cases available, and differences in
region, urbanization, and other factors between the two groups of states hinder
interpretation of these findings. However, the comparative negligence rule is not
shown to produce necessarily higher settlements than the contributory negligence
rule. Moreover, the comparative rule appears to offer a time savings in settling
doubtful liability cases, which may benefit all parties to the negotiation.”
HUGH LAWRENCE ROSS, SETTLED OUT OF COURT: THE SOCIAL PROCESS OF INSURANCE CLAIMS
ADJUSTMENT 128, 211 (1970).
Yet for all the real-world limits on the contributory negligence rule’s effect, or perhaps
because of them, the rule gave way in virtually every state to a regime known as comparative
negligence. Keeping in mind the public policy problem, consider the following two cases:
2. Comparative Negligence
Li v. Yellow Cab Company of California, 532 P.2d 1226 (Cal. 1975)
SULLIVAN, J.
The accident here in question occurred near the intersection of Alvarado Street and Third
Street in Los Angeles. At this intersection Third Street runs in a generally east-west direction
along the crest of a hill, and Alvarado Street, running generally north and south, rises gently to the
crest from either direction. At approximately 9 p.m. on November 21, 1968, plaintiff Nga Li was
proceeding northbound on Alvarado in her 1967 Oldsmobile. She was in the inside lane, and
about 70 feet before she reached the Third Street intersection she stopped and then began a left
turn across the three southbound lanes of Alvarado, intending to enter the driveway of a service
station. At this time defendant Robert Phillips, an employee of defendant Yellow Cab Company,
was driving a company-owned taxicab southbound in the middle lane on Alvarado. He came over
the crest of the hill, passed through the intersection, and collided with the right rear portion of
plaintiff’s automobile, resulting in personal injuries to plaintiff as well as considerable damage to
the automobile.
The court, sitting without a jury, found as facts that defendant Phillips was traveling at
approximately 30 miles per hour when he entered the intersection, that such speed was unsafe at
that time and place, and that the traffic light controlling southbound traffic at the intersection was
yellow when defendant Phillips drove into the intersection. It also found, however, that plaintiff’s
left turn across the southbound lanes of Alvarado “was made at a time when a vehicle was
approaching from the opposite direction so close as to constitute an immediate hazard.” The
dispositive conclusion of law was as follows: “That the driving of [Nga Li] was negligent, that
such negligence was a proximate cause of the collision, and that she is barred from recovery by
reason of such contributory negligence.”
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