Comparative Negligence and Jury Behavior

by Michael G. Shanley

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The law of comparative negligence provides that juries divide damages between the plaintiff and negligent defendants according to relative fault. The predecessor to this law, still in effect in nine states, is the contributory negligence law, which states that plaintiffs who contribute to their own injury in any way, should receive nothing. This paper examines the effect of the comparative negligence law with respect to the increase in awards to plaintiffs who take their case to trial. It analyzes 675 auto accident trials in San Francisco County in the 1970s, about half of which took place under the old contributory negligence law, and half under the new comparative negligence law. The analysis shows that the actual effect of the comparative negligence law is smaller than the potential effect, because juries do not strictly follow either law, but that it is still considerably higher than what current conventional wisdom would predict.

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