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Is the negligence of each defendant in a multi-defendant case to be compared individually against the negligence of the plaintiff or the total negligence of all the defendants should be compared to that of the plaintiff to determine whether a particular defendant is liable? Under the latter approach, or the 'unit' rule, the negligence of all defendants is taken together in making the comparison; under the 'Wisconsin' rule, the negligence of each defendant is compared against the plaintiff's negligence to determine whether a particular defendant is liable.
Even the Wisconsin Supreme Court has become disenchanted with the fairness of its own rule. It has stated: 'The majority of the court has become convinced that comparing the negligence of the individual plaintiff to that of the individual tortfeasor--rather than comparing the negligence of the individual plaintiff to that of the combined negligence of the several tortfeasors who have collectively contributed to plaintiff's injuries -- leads to harsh and unfair results . . . .' May v. Skelley Oil Co., 83 Wis. 2d 30, 264 N.W.2d 574, 578 (1978). And the Arkansas Supreme Court, in rejecting the Wisconsin rule, has characterized that rule as being 'demonstrably unjust.' ...
