See also Comparative Negligence and all its subcategories. A concept under tort law that looks to the degree of fault that a party is responsible for. All persons contributing to an accident are assessed pro rata in accordance with the degree of fault. This doctrine was established to get rid of the harsh results from contributory negligence. Thus under comparative fault contributory negligence does not preclude a party from recovering some damages.
Under the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible.' Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981)
The words comparative fault and comparative negligence are used interchangeably. Comparative fault has long been the federal rule in cases involving injured employees of interstate railroad carriers, see Federal Employers' Liability Act, ch. 149, § 3, 35 Stat. 66 (1908) (codified at 45 U.S.C. § 53 (1988)), and injured seamen. See Death On The High Seas Act, ch. 111, § 6, 41 Stat. 537 (1920) (codified at 46 U.S.C. § 766 (1988)); Jones Act, ch. 250, § 33, 41 Stat. 1007 (1920) (codified as amended at 46 U.S.C. § 688 (1988)). See generally V. Schwartz, Comparative Negligence § 1.4(A) (2d ed. 1986). Similarly, by the early 1900s, many states, including Tennessee, had statutes providing for the apportionment of damages in railroad injury cases. See V. Schwartz, supra, at § 1.4.
While Tennessee's railroad statute did not expressly sanction damage apportionment, it was soon given that judicial construction. In 1856, the statute was passed in an effort to prevent railroad accidents; it imposed certain obligations and liabilities on railroads 'for all damages accruing or resulting from a failure to perform said duties.' Act of Feb. 28, 1856, ch. 94, § 9, 1855-56 Tenn. its 104. See generally J.W. Wade, supra, at 431-33. Apparently this strict liability was deemed necessary because 'the consequences of carelessness and want of due skill [in the operation of railroads at speeds previously unknown] . . . are so frightful and appalling that the most strict and rigid rules of accountability must be applied.' See East Tennessee & G.R.R. v. St. John, 37 Tenn. 524, 527 (1858); Note, Railroads--Precautions Act--Effect of 1959 Amendment, 28 Tenn. L. Rev. 437, 439 (1961).
The statute was then judicially construed to permit the jury to consider 'negligence of the person injured, which caused, or contributed to cause the accident . . . in determining the amount of damages proper to be given for the injury.' Louisville & N.R.R. v. Burke, 46 Tenn. 45, 51-52 (1868). This system of comparative fault was utilized for almost a century until 1959 when, trains no longer unique in their 'astonishing speeds,' the statute was overhauled, its strict liability provision being replaced by negligence per se and the common law contributory negligence bar. See Act of Mar. 10, 1959, ch. 130, § 2, 1959 Tenn. Pub. Acts 419; Note, supra, 28 Tenn. L. Rev. at 439.
Between 1920 and 1969, a few states began utilizing the principles of comparative fault in all tort litigation. See C. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn. L. Rev. 199, 227 n. 127 (1990). Then, between 1969 and 1984, comparative fault replaced contributory negligence in 37 additional states. Id. at 228. In 1991, South Carolina became the 45th state to adopt comparative fault, see Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991), leaving Alabama, Maryland, North Carolina, Virginia, and Tennessee as the only remaining common law contributory negligence jurisdictions.
Eleven states have judicially adopted comparative fault. In the order of their adoption, these states are Florida, California, Alaska, Michigan, West Virginia, New Mexico, Illinois, Iowa, Missouri, Kentucky, and South Carolina. Nine courts adopted pure comparative fault: See Hoffman v. Jones, 280 So.2d 431 (Fla. 1973); Li v. Yellow Cab Co., 13 Cal.3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975); Kaatz v. State, 540 P.2d 1037 (Alaska 1975); Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979); Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981) Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill. Dec. 23 (1981); Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982); Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983); Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984). In two of these states, legislatures subsequently enacted a modified form. See Ill. Ann. Stat. ch. 110, para. 2-1116 (Supp. 1991); Iowa Code Ann. § 668.3 (West 1987). Two courts adopted a modified form of comparative fault. See Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979) (plaintiff may recover if his negligence is less than defendants'); Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991) (plaintiff may recover if his negligence is not greater than defendants').
Thirty-four states have legislatively adopted comparative fault. Six states have legislatively adopted pure comparative fault: Mississippi, Rhode Island, Washington, New York, Louisiana, and Arizona; Eight legislatures have enacted the modified '49 percent' rule (plaintiff may recover if plaintiff's negligence is less than defendant's): Georgia, Arkansas, Maine, Colorado, Idaho, North Dakota, Utah, and Kansas; Eighteen legislatures have enacted the modified '50 percent' rule (plaintiff may recover so long as plaintiff's negligence is not greater than defendant's): Wisconsin, Hawaii, Massachusetts, Minnesota, New Hampshire, Vermont, Oregon, Connecticut, Nevada, New Jersey, Oklahoma, Texas, Wyoming, Montana, Pennsylvania, Ohio, Indiana, and Delaware; Two legislatures have enacted statutes that allow a plaintiff to recover if plaintiff's negligence is slight when compared to defendant's gross negligence: Nebraska and South Dakota. See V. Schwartz, supra, at § 2.1.
Following is a list of statutes for those states who have codified their comparative fault systems, including the statutes of those states where comparative fault was initially adopted by judicial action: See Alaska Stat. § 09.17.060 (Supp. 1991); Ariz. Rev. Stat. Ann. § 12-2505(A) (Supp. 1991); Ark. Stat. Ann. § 16-64-122 (Supp. 1991); Colo. Rev. Stat. § 13-21-111 (1987); Conn. Gen. Stat. Ann. § 52-572h (1991); Del. Code Ann. tit. 10, § 8132 (Supp. 1990); Fla. Stat. Ann. § 768.81 (West Supp. 1992); Ga. Code Ann. § 105-603 (Harrison 1984); Haw. Rev. Stat. § 663-31 (1985); Idaho Code § 6-801 (1990); Ill. Ann. Stat. ch. 110, para. 2-1116 (Smith-Hurd Supp. 1991); Ind. Code Ann. § 34-4-33-3, 4 (West Supp. 1991); Iowa Code Ann. § 668.3 (West 1987); Kan. Stat. Ann. § 60-258a (Supp. 1991); La. Civ. Code Ann. art. 2323 (West Supp. 1992; Me. Rev. Stat. Ann. tit. 14, § 156 (1980); Mass. Gen. laws Ann. ch. 231 § 85 (West 1985); Minn. Stat. Ann. § 604.01(1) (West Supp. 1992); Miss. Code Ann. § 11-7-15 (1972); Mont. Code Ann. § 27-1-702 (1991); Neb. Rev. Stat. § 25-21, 185.01 to .06 (Supp. 1991); Nev. Rev. Stat. § 41.141 (1991); N. H. Rev. Stat. Ann. § 507; 7-d (Supp. 1991); N. J. Stat. Ann. § 2A: 15-5.1 (West 1987); N. Y. Civ. Prac. L. & R. 1411 (McKinney 1976); N. D. Cent. Code § 32-03.2-01 to -03 (Supp. 1991); Ohio Rev. Code Ann. § 2315.19 (Anderson 1991); Okla. Stat. Ann. tit. 23, §§ 13, 14 (West 1987); Or. Rev. Stat. § 18.470 (1988); 42 Pa. Cons. Stat. Ann. § 7102 Purdon 1982 & Supp. 1991); R.I. Gen. laws § 9-20-4 (1985); S.D. Codified laws Ann. § 20-9-2 (1987); Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001, 33.012 (Vernon Supp. 1992); Utah Code Ann. § 78-27-38 (1992); Vt. Stat. Ann. tit. 12, § 1036 (Supp. 1991); Wash. Rev. Code Ann. § 4.22.005 (1988); Wis. Stat. Ann. § 895.045 (West 1983); Wyo. Stat. § 1-1-109 (1988).
The comparative fault system's focus on the party's relative 'fault' avoids the 'apples and oranges' argument which contends that a plaintiff's negligence cannot be effectively compared to a manufacturer's conduct in producing a defective product because strict liability is not predicated on a breach of any duty of care. See Carol A. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn. L.Rev. 199, 295 (1990); Jerry J. Phillips, The Case for Judicial Adoption of Comparative Negligence in South Carolina, 32 S.C.L.Rev. 295, 299 (1980); 1 Comparative Negligence: Law and Practice Section 9.30  (Matthew Bender 1993); Dan B. Dobbs et al, Prosser and Keeton on the Law on Torts Section 67, at 478 (5th Ed. 1984 and Supp. 1988).
Unlike a negligence-based system, which limits liability to the narrow basis of a party's breach of a duty of care, the fault-based system adopted by the McIntyre court allows the fact-finder to weigh the relative conduct of the parties. See e.g. Uniform Comparative Fault Act § 1(b) cmt., 12 U.L.A. 46 (West Supp. 1993) ('Putting out a product that is dangerous to the user or the public . . . involves a measure of fault that can be weighed and compared, even though it is not characterized as negligence.'). 825 F. Supp. at 838-839.