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In Defense of Contributory Negligence

I asked the Virginia Lawyers' Weekly, a plaintiffs' bar publication, to allow me to publish this op-ed three years ago, when a bill was pending to move Virginia to comparative negligence. I was surprised when VLW agreed, and I expected to be the object of multiple letters to the editor. Instead, total silence greeted my op-ed. Perhaps my opponents thought silence the best response? Well, I refuse to keep silent! Here is the op-ed I published at that time -- I believe it is as relevant today as it was back then.

We must keep Contributory Negligence in Virginia

Imagine a two-car collision at a four-way stop sign. Rochelle Rich, heading north down the road in her Rolls Royce (value: $200,000) was too busy punching stock option quotes into her Palm Pilot to notice the pesky stop sign. Peter Poor, lumbering west in his beat- up Chevy pick-up (value $2000) was ogling a girl on the corner, and also missed his stop. The two cars collide with each other and are destroyed (though thankfully no one is injured).

In Virginia neither party to this collision will be able to sue the other. Rochelle Rich will have to bear her $200,000 loss. Peter Poor will be saddled with his $2000 wreck. Either or both may have first-party (contract) collision insurance, of course, which they will have paid for. Now imagine that Virginia has adopted a pure comparative negligence regime. Say each party is found to be 50% negligent (more on this very problematic finding below). Rochelle will be condemned to pay $1000 to Peter. Peter will be condemned to pay $100,000 to Rochelle. After the $1000 set-off Peter's net liability will be $99,000. This amount will be determined through tort adjudication, not through contract. Many people claim that comparative negligence is more "fair" to the deserving poor than contributory negligence. Excuse me, but I just don't see it. Why is it "fair" to make Peter Poor subsidize the Rolls-Royce owned by Rochelle Rich? Wealthy people have, on average, much higher damages than do poor people - not only do they drive more expensive cars, they also have greater lost income and medical fees. What redistributive goal is satisfied by having the poor pay the wealthy when both are negligent causes of an accident? Contributory negligence sends negligent tortfeasors home empty-handed when they try to shift the blame for their self-inflicted injuries. Their recovery, if they have any, must come from their own insurance policy. This is the beauty of Virginia's rule - it encourages recovery through contract, which is much more efficient to everyone concerned (except lawyers, of course) than recovery through tort. First-party insurance typically has a loading cost close to 10% (that is, for every $1.10 in premium paid, $1 is eventually distributed to those who suffer a loss). Under comparative negligence, the default rule for a negligent person involved with another negligent party remains third party insurance (i.e., determination of shares of liability after a tort process), which has a loading cost close to 100% (it takes $2 in premiums to obtain $1 in compensation).

Do all Virginians wish to increase insurance premiums so the negligent poor might subsidize the negligent rich? Do they wish to engage in costly trials so that seven jurors could determine "shares of negligence," a process that has never been reduced to a science and that in fact is more akin to determining how many angels can dance on the head of a pin?

Maybe Virginia should emulate Florida. There, Barry Rothberg, driving his car, hit Plaintiff William Baugh whom he first saw in the center of a four-lane roadway.1 In an attempt to avoid Baugh, Rothberg moved his vehicle from the inside lane to the outside lane. At the same time, Baugh first moved back to the curb but then moved back into the roadway. The overwhelmingly obvious negligence of the victim of this accident would have kept this case out of a Virginia court. But in Florida the jury applies its comparative negligence alchemy in every case, with results presumably depending on the attractiveness of the plaintiff and the depth of pockets of the defendant. This particular jury found the victim 85% negligent and Rothberg 15% negligent, of the resulting $161,005.61 injury. Thus, the net verdict against Baugh was $24,150.84. Maybe Rothberg should have practiced his avoidance slalom a few times at the local race track.

Also in the Sunshine State, a young girl and her fiancé flirted by ramming each other's go-carts while on the Grand Prix ride at Disney World. Rammed too hard, the girl suffered injuries. Of course, she sued Disney World, claiming that the bumpers on her go-cart should have been thicker. [Can't bumpers always be thicker than they currently are.] The jury found Disney world "1% negligent", whatever the heck that means. Because of joint and several liability, Disney was obliged to pay 86% of the girl's damages.2 Thank Florida's comparative negligence rule -- the girl's case would likely never have gone to a Virginia jury, because of contributory negligence -- next time you pay your admission fee in Orlando.

Apportionment of fault is a flawed system. It suffers from inexactness, bias, and uncertainty; and thus it decreases parties' incentives to settle. Rejecting apportionment of fault is the optimal policy choice. Virginia should be proud that it has retained the common law contributory negligence rule. With its sister state Maryland,3 the Old Dominion should refrain from jumping on the disastrous comparative negligence bandwagon.

1 BAUGH V. ROTHBERG, NO. 96-8482-AH, 1999 FLA. JURY VERDICT REP. NO. 99:4-70 (PALM BEACH COUNTY (FLA.) CT. NOV. 28, 1998).

2 WALT DISNEY WORLD CO. V. WOOD, 515 SO. 2D 198 (FLA. 1987)

3 SEE, E.G., HARRISON V. MONTGOMERY COUNTY BD. OF EDUC., 456 A.2D 894, 898 (MD. 1983):

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.