HANDOUT FOR DISCUSSION ON THE COMMON LAW
I.
Introductory Note to Pulliam v. Allen
Pulliam v. Allen involves application of federal statutes to Gladys Pulliam, a Virginia
magistrate. Richmond R. Allen and Jesse W. Nicholson sued Pulliam under 42 USC section
1983, a federal statute, in federal court. They claimed that Pulliam denied them their
constitutional rights by imposing bail on them as to an offense for which they could not have
been jailed under Virginia law and for incarcerating them because they could not meet the
bail. Under Section 1983, the District Court enjoined Pulliam from engaging in the
unconstitutional practice. It also awarded Allen and Nicholson $7,691.09 in costs and
attorney's fees under Section 1988. The U.S. Court of Appeals for the Fourth Circuit rejected
Pulliam’s claim that judicial immunity barred the award of attorney's fees against her.
When reading both Pulliam v. Allen keep in mind the following language from 42 U.S.C. §
1983:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
PULLIAM v. ALLEN
466 U.S. 522 (1984)
could be awarded by the Chancellor only
against the parties in proceedings before other
courts. See 2 J. Story, Equity Jurisprudence
para. 875, p. 72 (11th ed. 1873). This
limitation on the use of the injunction,
however, says nothing about the scope of
judicial immunity. And the limitation derived
not from judicial immunity, but from the
substantive confines of the Chancellor's
authority. Ibid.
OPINION:
JUSTICE BLACKMUN delivered the
opinion of the Court.
***
The starting point in our own analysis is
the common law. Our cases have proceeded
on the assumption that common-law
principles of legislative and judicial immunity
were incorporated into our judicial system
and that they should not be abrogated absent
clear legislative intent to do so. . . .
Although there were no injunctions
against common-law judges, there is a
common-law parallel to the § 1983 injunction
at issue here. That parallel is found in the
collateral prospective relief available against
At the common law itself, there was no
such thing as an injunction against a judge.
Injunctive relief was an equitable remedy that
1
judges through the use of the King's
prerogative writs. A brief excursion into
common-law history helps to explain the
relevance of these writs to the question
whether principles of common-law immunity
bar injunctive relief against a judicial officer.
rival and inferior courts has particular
significance.
The King's Bench exercised significant
collateral control over inferior and rival courts
through the use of prerogative writs. The
writs included habeas corpus, certiorari,
prohibition, mandamus, quo warranto, and ne
exeat regno. 1 Holdsworth, at 226-231 (7th
ed. 1956). Most interesting for our current
purposes are the writs of prohibition and
mandamus. The writs issued against a judge,
in theory to prevent him from exceeding his
jurisdiction or to require him to exercise it.
Id., at 228-229. In practice, controlling an
inferior court in the proper exercise of its
jurisdiction meant that the King's Bench used
and continues to use the writs to prevent a
judge from committing all manner of errors,
including departing from the rules of natural
justice, proceeding with a suit in which he has
an interest, misconstruing substantive law,
and rejecting legal evidence.
See 1
Halsbury's Laws of England paras. 76, 81,
130 (4th ed. 1973); Gordon, The Observance
of Law as a Condition of Jurisdiction, 47 L.
Q. Rev. 386, 394 (1931).
The doctrine of judicial immunity and the
limitations on prospective collateral relief
with which we are concerned have related
histories. Both can be traced to the successful
efforts of the King's Bench to ensure the
supremacy of the common-law courts over
their 17th- and 18th-century rivals. See 5 W.
Holdsworth, A History of English Law 159160 (3d ed. 1945) (Holdsworth).
[The court discusses the development of
the doctrine of judicial immunity at English
Common Law. The doctrine was once based
on the need to protect the King’s prerogatives;
it later was justified to preserve judicial
independence.]
. . . . By 1868, one of the judges of the
Court of Exchequer explained judicial
immunity in language close to our
contemporary understanding of the doctrine:
. . . The writs were particularly useful in
exercising collateral control over the
ecclesiastical courts, since the King's Bench
exercised no direct review over those
tribunals. . . .
"It is essential in all courts that the judges
who are appointed to administer the law
should be permitted to administer it under the
protection of the law, independently and
freely, without favor and without fear. This
provision of the law is not for the protection
or benefit of a malicious or corrupt judge, but
for the benefit of the public, whose interest it
is that the judges should be at liberty to
exercise their functions with independence,
and without fear of consequences." Scott v.
Stansfield, 3 L. R. Ex., at 223, quoted in
Bradley v. Fisher, 13 Wall. 335, 350, n.
(1872).
The relationship between the King's
Bench and its collateral and inferior courts is
not precisely paralleled in our system by the
relationship between the state and federal
courts. To the extent that we rely on the
common-law practice in shaping our own
doctrine of judicial immunity, however, the
control exercised by the King's Bench through
the prerogative writs is highly relevant. It
indicates that, at least in the view of the
common law, there was no inconsistency
between a principle of immunity that
protected judicial authority from "a wide,
wasting, and harassing persecution," Taaffe v.
It is in the light of the common law's focus
on judicial independence that the collateral
control exercised by the King's Bench over
2
Downes, 13 Eng. Rep., at 18, n. (a), and the
availability of collateral injunctive relief in
exceptional cases. Nor, as indicated above,
did the common law deem it necessary to
limit this collateral relief to situations where
no alternative avenue of review was available.
See Gould v. Gapper, supra.
counsel or to leave his defense to one of the
litigants before him," the Court has stressed
that it should be "reserved for really
extraordinary causes." Ex parte Fahey, 332
U.S. 258, 260] (1947). Occasionally,
however, there are "really extraordinary
causes" and, in such cases, there has been no
suggestion that judicial immunity prevents the
supervising court from issuing the writ.
. . . Our own experience is fully consistent
with the common law's rejection of a rule of
judicial immunity from prospective relief. We
never have had a rule of absolute judicial
immunity from prospective relief, and there is
no evidence that the absence of that immunity
has had a chilling effect on judicial
independence. None of the seminal opinions
on judicial immunity, either in England or in
this country, has involved immunity from
injunctive relief. No Court of Appeals ever
has concluded that immunity bars injunctive
relief against a judge. At least seven Circuits
have indicated affirmatively that there is no
immunity bar to such relief, and in situations
where in their judgment an injunction against
a judicial officer was necessary to prevent
irreparable
injury
to
a
petitioner's
constitutional rights, courts have granted that
relief.
The other concern raised by collateral
injunctive relief against a judge, particularly
when that injunctive relief is available
through § 1983, relates to the proper
functioning of federal-state relations. Federal
judges, it is urged, should not sit in constant
supervision of the actions of state judicial
officers, whatever the scope of authority
under § 1983 for issuing an injunction against
a judge.
The answer to this concern is that it is not
one primarily of judicial independence,
properly addressed by a doctrine of judicial
immunity. The intrusion into the state process
would result whether the action enjoined were
that of a state judge or of another state
official. The concern, therefore, has been
addressed as a matter of comity and
federalism, independent of principles of
judicial immunity. We reaffirm the validity of
those principles and the need for restraint by
federal courts called on to enjoin the actions
of state judicial officers. We simply see no
need to reinterpret the principles now as
stemming from the doctrine of judicial
immunity.
For the most part, injunctive relief against
a judge raises concerns different from those
addressed by the protection of judges from
damages awards. The limitations already
imposed by the requirements for obtaining
equitable relief against any defendant -- a
showing of an inadequate remedy at law and
of a serious risk of irreparable harm, see
Beacon Theatres, Inc. v. Westover, 359 U.S.
500, 506-507 (1959) -- severely curtail the
risk that judges will be harassed and their
independence compromised by the threat of
having to defend themselves against suits by
disgruntled litigants. Similar limitations serve
to prevent harassment of judges through use
of the writ of mandamus. Because mandamus
has "the unfortunate consequence of making
the judge a litigant, obliged to obtain personal
If the Court were to employ principles of
judicial immunity to enhance further the
limitations already imposed by principles of
comity and federalism on the availability of
injunctive relief against a state judge, it would
foreclose relief in situations where, in the
opinion of a federal judge, that relief is
constitutionally required and necessary to
prevent irreparable harm. Absent some basis
for determining that such a result is
3
compelled, either by the principles of judicial
immunity, derived from the common law and
not explicitly abrogated by Congress, or by
Congress' own intent to limit the relief
available under § 1983, we are unwilling to
impose those limits ourselves on the remedy
Congress provided.
Subsequent interpretations of the Civil
Rights Acts by this Court acknowledge
Congress' intent to reach unconstitutional
actions by all state actors, including judges. .
..
. . . Congress intended § 1983 to be an
independent protection for federal rights and
[we] find nothing to suggest that Congress
intended to expand the common-law doctrine
of judicial immunity to insulate state judges
completely from federal collateral review.
As illustrated above, there is little support
in the common law for a rule of judicial
immunity that prevents injunctive relief
against a judge. There is even less support for
a conclusion that Congress intended to limit
the injunctive relief available under § 1983 in
a way that would prevent federal injunctive
relief against a state judge. In Pierson v. Ray,
386 U.S. 547 (1967), the Court found no
indication of affirmative congressional intent
to insulate judges from the reach of the
remedy Congress provided in § 1983. The
Court simply declined to impute to Congress
the intent to abrogate common-law principles
of judicial immunity. Absent the presumption
of immunity on which Pierson was based,
nothing in the legislative history of § 1983 or
in this Court's subsequent interpretations of
that statute supports a conclusion that
Congress intended to insulate judges from
prospective collateral injunctive relief.
We conclude that judicial immunity is not
a bar to prospective injunctive relief against a
judicial officer acting in her judicial capacity.
...
Petitioner insists that judicial immunity
bars a fee award because attorney's fees are
the functional equivalent of monetary
damages and monetary damages indisputably
are prohibited by judicial immunity. She
reasons that the chilling effect of a damages
award is no less chilling when the award is
denominated attorney's fees.
There is, perhaps,
petitioner's reasoning.
Congress enacted § 1983 and its
predecessor, § 2 of the Civil Rights Act of
1866, 14 Stat. 27, to provide an independent
avenue for protection of federal constitutional
rights. The remedy was considered necessary
because "state courts were being used to
harass and injure individuals, either because
the state courts were powerless to stop
deprivations or were in league with those who
were bent upon abrogation of federally
protected rights." Mitchum v. Foster, 407 U.S.
225, 240 (1972). See also Pierson v. Ray, 386
U.S., at 558-564 (dissenting opinion) (every
Member of Congress who spoke to the issue
assumed that judges would be liable under §
1983).
some
logic
to
The weakness in it is that it is for
Congress, not this Court, to determine
whether and to what extent to abrogate the
judiciary's common-law immunity. See
Pierson v. Ray, 386 U.S., at 554. Congress
has made clear in § 1988 its intent that
attorney's fees be available in any action to
enforce a provision of § 1983. . . . Congress'
intent could hardly be more plain. Judicial
immunity is no bar to the award of attorney's
fees under 42 U. S. C. § 1988.
The judgment of the Court of Appeals,
allowing the award of attorney's fees against
petitioner, is therefore affirmed.
It is so ordered.
4
prohibition and mandamus present a
"common-law parallel to the § 1983
injunction at issue here."
DISSENT:
JUSTICE POWELL, with whom THE
CHIEF JUSTICE, JUSTICE REHNQUIST,
and JUSTICE O'CONNOR join, dissenting.
***
…
In sum, the perceived analogy to the use
of prerogative writs at English common law
simply does not withstand analysis. As
shown above, the analogy rests on a peculiar
practice at English common law that was
occasioned by the unique relationship
between the King's Bench and England's
ecclesiastical courts. That relationship finds
no parallel in this country. Moreover, our
courts, and the Federal Rules of Appellate
Procedure, have sought to limit the use of
mandamus and prohibition for the very
purpose of protecting judicial immunity. It is
extraordinary, therefore, that the Court today
should rely on the use of prerogative writs in
England to justify exposing judicial officials
in this country to harassing litigation and to
subject them to personal liability for money
judgments in the form of costs and attorney's
fees.
***
Since 1869, this Court consistently has
held that judges are absolutely immune from
civil suits for damages. We have had no
occasion, however, to determine whether
judicial immunity bars a § 1983 suit for
prospective relief. It is clear that Congress did
not limit the scope of common-law
immunities in either § 1983 or § 1988. We,
therefore, have looked to the common law to
determine when absolute immunity should be
available. A review of the common law
reveals nothing that suggests -- much less
requires -- the distinction the Court draws
today between suits for prospective relief
(with the attendant liability for costs and
attorney's fees) and suits for damages.
[The dissenters discuss the rationale for
judicial immunity.]
The Court nevertheless argues that the
common law of England can be viewed as
supporting the absence of immunity where the
suit is for injunctive relief. The Court
concedes, as it must, that suits for injunctive
relief against a judge could not be maintained
either at English common law or in the
English courts of equity. Injunctive relief
from inequitable proceedings at common law
was available in equity "to stay [a commonlaw] trial; or, after verdict, to stay judgment;
or, after judgment, to stay execution." J.
Story, Equity Jurisprudence para. 874, p. 72
(11th ed. 1873). But such relief was available
only against the parties to the common-law
proceedings and not against the judge. Id.,
para. 875, at 72. The suit for injunctive relief
at issue here is precisely the type of suit that
the Court concedes could not have been
maintained either at common law or in equity.
The Court, however, reasons that the writs of
5
II.
Questions and Comments
A.
The phrase “common law” refers to “[t]he body of law derived from judicial
decisions, rather than from statutes or constitutions.” BLACK’S LAW
DICTIONARY 270 (7th ed. 1999). The basis of a judicial decision in the
common law system is precedent, or the earlier decisions of courts. Why
does Justice Blackmun cite to the common law in determining the
application of a federal statute, 42 U.S.C. § 1983?
B.
Is the analogy to the King’s prerogative writ applicable to the claim in
Pulliam? Should a common law based on the King’s prerogative writ be
relevant to a system that lacks a King’s bench?
C.
Justice Blackmun recognizes the importance of judicial immunity and its
basis in the common law. Is the rationale for judicial immunity undermined
by the award of attorney fees against Magistrate Pulliam?
D.
What policy reasons does the dissenting opinion give to support reversal of
the award of attorney fees against Magistrate Pulliam?
E.
As you can imagine, the prospect of a state judge being personally liable for
a decision made while serving as a state officer caused great concern. In
1996, as a result of Pulliam, the U.S. Congress passed the Federal Courts
Improvement Act, which amended Section 1983 to state as follows:
“injunctive relief shall not be granted” in an action brought against “a
judicial officer for an act or omission taken in such officer’s judicial
capacity, unless a declaratory decree was violated or declaratory relief was
unavailable.”
F.
III.
In Pulliam, the Court examined the common law in determining the scope of
judicial immunity. Another interesting aspect is the role of “federal
common law,” or what Professors Hart and Wechsler have defined as
“federal rules of decision where the authority for a federal rule is not
explicitly or clearly found in federal statutory or constitutional command.”
Paul M. Bator et al., HART & WECHSLER’S THE FEDERAL COURTS AND
FEDERAL SYSTEM 770 (2d ed. 1973). Please keep the concept of federal
common law in mind, as it will be examined later in more detail.
Introductory Note to Li v. Yellow Cab
A common defense to a claim of negligence is that the plaintiff was also negligent. Indeed,
any decent lawyer, after sifting through a factual scenario, could probably find fault with multiple
persons involved in the event giving rise to a claim for damages. For many years, plaintiff’s own
negligence, however slight, was an absolute bar to any plaintiff’s recovery. This doctrine of
6
contributory negligence has been largely replaced by the doctrine of comparative negligence, in
which recovery is limited based on the degree of fault.
Li v. Yellow Cab involved a car accident in which the defendant alleged that plaintiff was
also responsible for the accident. The California Supreme Court announced for the first time a rule
of comparative negligence.
LI v. YELLOW CAB CO.
532 P.2d 1226 (Cal. 1975)
OPINION BY:
This rule, rooted in the long standing
principle that one should not recover from
another for damages brought upon oneself . . .
SULLIVAN
[A collision between two cars in an
intersection occurred; the jury found that
drivers of both cars were at fault.] [Plaintiff] Li
was [found] negligent, that such negligence
was a proximate cause of the collision, and that
she is barred from recovery by reason of such
contributory negligence." Judgment for
defendants was entered accordingly.
***
. . . We are []persuaded that logic, practical
experience, and fundamental justice counsel
against the retention of the doctrine rendering
contributory negligence a complete bar to
recovery -- and that it should be replaced in this
state by a system under which liability for
damage will be borne by those whose
negligence caused it in direct proportion to
their respective fault.
"Contributory negligence is conduct on the
part of the plaintiff which falls below the
standard to which he should conform for his
own protection, and which is a legally
contributing cause cooperating with the
negligence of the defendant in bringing about
the plaintiff's harm." (Rest. 2d Torts, § 463.)
Thus the American Law Institute, in its second
restatement of the law, describes the kind of
conduct on the part of one seeking recovery for
damage caused by negligence which renders
him subject to the doctrine of contributory
negligence. What the effect of such conduct
will be is left to a further section, which states
the doctrine in its clearest essence: "Except
where the defendant has the last clear chance,
the plaintiff's contributory negligence bars
recovery against a defendant whose negligent
conduct would otherwise make him liable to
the plaintiff for the harm sustained by him."
(Rest. 2d Torts, § 467.) (Italics added.)
The foregoing conclusion, however, clearly
takes us only part of the way. It is strenuously
and ably urged by defendants and two of the
amici curiae that whatever our views on the
relative merits of contributory and comparative
negligence, we are precluded from making
those views the law of the state by judicial
decision. Moreover, it is contended, even if we
are not so precluded, there exist considerations
of a practical nature which should dissuade us
from embarking upon the course which we
have indicated. We proceed to take up these
two objections in order.
It is urged that any change in the law of
contributory negligence must be made by the
Legislature, not by this court. Although the
doctrine of contributory negligence is of
judicial origin -- its genesis being traditionally
attributed to the opinion of Lord Ellenborough
7
in Butterfield v. Forrester (K.B. 1809) 103 Eng.
Rep. 926 -- the enactment of section 1714 of
the Civil Code in 1872 codified the doctrine as
it stood at that date and, the argument
continues, rendered it invulnerable to attack in
the courts except on constitutional grounds.
Subsequent cases of this court, it is pointed out,
have unanimously affirmed that -- barring the
appearance of some constitutional infirmity -the "all-or-nothing" rule is the law of this state
and shall remain so until the Legislature directs
otherwise.
The fundamental constitutional
doctrine of separation of powers, the argument
concludes, requires judicial abstention.
the jury to evaluate relative negligence in such
circumstances, and to compound this difficulty
such an evaluation would not be res judicata in
a subsequent suit against the absent wrongdoer.
Problems of contribution and indemnity among
joint tortfeasors lurk in the background. (See
generally Prosser, Comparative Negligence,
supra, 41 Cal.L.Rev. 1, 33-37; Schwartz,
Comparative Negligence, supra, §§ 16.1-16.9,
pp. 247-274.)
A second and related major area of concern
involves the administration of the actual
process of fact-finding in a comparative
negligence system. The assigning of a specific
percentage factor to the amount of negligence
attributable to a particular party, while in
theory a matter of little difficulty, can become a
matter of perplexity in the face of hard facts.
We have concluded that the foregoing
argument, in spite of its superficial appeal, is
fundamentally misguided. As we proceed to
point out and elaborate below, it was not the
intention of the Legislature in enacting section
1714 of the Civil Code, as well as other
sections of that code declarative of the common
law, to insulate the matters therein expressed
from further judicial development; rather it was
the intention of the Legislature to announce and
formulate existing common law principles and
definitions for purposes of orderly and concise
presentation and with a distinct view toward
continuing judicial evolution.
The temptation for the jury to resort to a
quotient verdict in such circumstances can be
great. (See Schwartz, supra, § 17.1, pp. 275279.) These inherent difficulties are not,
however, insurmountable. Guidelines might be
provided the jury which will assist it in keeping
focussed upon the true inquiry (see, e.g.,
Schwartz, supra, § 17.1, pp. 278-279), and the
utilization of special verdicts or jury
interrogatories can be of invaluable assistance
in assuring that the jury has approached its
sensitive and often complex task with proper
standards and appropriate reverence. (See
Schwartz, supra, § 17.4, pp. 282-291; Prosser,
Comparative Negligence, supra, 41 Cal.L.Rev.,
pp. 28-33.)
***
We are thus brought to the second group of
arguments which have been advanced by
defendants and the amici curiae supporting
their position.
Generally speaking, such
arguments expose considerations of a practical
nature which, it is urged, counsel against the
adoption of a rule of comparative negligence in
this state even if such adoption is possible by
judicial means.
The third area of concern, the status of the
doctrines of last clear chance and assumption of
risk, involves less the practical problems of
administering a particular form of comparative
negligence than it does a definition of the
theoretical outline of the specific form to be
adopted. Although several states which apply
comparative negligence concepts retain the last
clear chance doctrine (see Schwartz, supra, §
7.2, p. 134), the better reasoned position seems
to be that when true comparative negligence is
The most serious of these considerations
are those attendant upon the administration of a
rule of comparative negligence in cases
involving multiple parties. One such problem
may arise when all responsible parties are not
brought before the court: it may be difficult for
8
adopted, the need for last clear chance as a
palliative of the hardships of the "all-ornothing" rule disappears and its retention
results only in a windfall to the plaintiff in
direct contravention of the principle of liability
in proportion to fault. (See Schwartz, supra, §
7.2, pp. 137-139; Prosser, Comparative
Negligence, supra, 41 Cal.L.Rev., p. 27.) As
for assumption of risk, we have recognized in
this state that this defense overlaps that of
contributory negligence to some extent and in
fact is made up of at least two distinct defenses.
"To simplify greatly, it has been observed . . .
that in one kind of situation, to wit, where a
plaintiff unreasonably undertakes to encounter
a specific known risk imposed by a defendant's
negligence, plaintiff's conduct, although he
may encounter that risk in a prudent manner, is
in reality a form of contributory negligence . . .
. Other kinds of situations within the doctrine
of assumption of risk are those, for example,
where plaintiff is held to agree to relieve
defendant of an obligation of reasonable
conduct toward him. Such a situation would
not involve contributory negligence, but rather
a reduction of defendant's duty of care." We
think it clear that the adoption of a system of
comparative negligence should entail the
merger of the defense of assumption of risk
into the general scheme of assessment of
liability in proportion to fault in those particular
cases in which the form of assumption of risk
involved is no more than a variant of
contributory negligence.
multiple parties and willful misconduct) are not
involved in the case before us, and we consider
it neither necessary nor wise to address
ourselves to specific problems of this nature
which might be expected to arise. As the
Florida court stated with respect to the same
subject, "it is not the proper function of this
Court to decide unripe issues, without the
benefit of adequate briefing, not involving an
actual controversy, and unrelated to a specific
factual situation." (Hoffman v. Jones, supra,
280 So.2d 431, 439.)
Our previous comments relating to the
remaining two areas of concern (i.e., the status
of the doctrines of last clear chance and
assumption of risk, and the matter of judicial
supervision of the finder of fact) have provided
sufficient guidance to enable the trial courts of
this state to meet and resolve particular
problems in this area as they arise. As we have
indicated, last clear chance and assumption of
risk (insofar as the latter doctrine is but a
variant of contributory negligence) are to be
subsumed under the general process of
assessing liability in proportion to fault, and the
matter of jury supervision we leave for the
moment within the broad discretion of the trial
courts.
Our decision in this case is to be viewed as
a first step in what we deem to be a proper and
just direction, not as a compendium containing
the answers to all questions that may be
expected to arise. Pending future judicial or
legislative developments, we are content for the
present to assume the position taken by the
Florida court in this matter: "We feel the trial
judges of this State are capable of applying [a]
comparative negligence rule without our setting
guidelines in anticipation of expected
problems.
The problems are more
appropriately resolved at the trial level in a
practical manner instead of a theoretical
solution at the appellate level. The trial judges
are granted broad discretion in adopting such
procedures as may accomplish the objectives
***
The existence of the foregoing areas of
difficulty and uncertainty (as well as others
which we have not here mentioned -- see
generally Schwartz, supra, § 21.1, pp. 335-339)
has not diminished our conviction that the time
for a revision of the means for dealing with
contributory fault in this state is long past due
and that it lies within the province of this court
to initiate the needed change by our decision in
this case. Two of the indicated areas (i.e.,
9
and purposes expressed in this opinion." (280
So.2d at pp. 439-440.)
***
It remains to identify the precise form of
comparative negligence which we now adopt
for application in this state. Although there are
many variants, only the two basic forms need
be considered here. The first of these, the socalled "pure" form of comparative negligence,
apportions liability in direct proportion to fault
in all cases. . . . The second basic form of
comparative negligence, of which there are
several variants, applies apportionment based
on fault up to the point at which the plaintiff's
negligence is equal to or greater than that of the
defendant -- when that point is reached,
plaintiff is barred from recovery. Nineteen
states have adopted this form or one of its
variants by statute. . . .
We have concluded that the "pure" form of
comparative negligence is that which should be
adopted in this state. In our view the "50
percent" system simply shifts the lottery aspect
of the contributory negligence rule to a
different ground. As Dean Prosser has noted,
under such a system "[it] is obvious that a
slight difference in the proportionate fault may
permit a recovery; and there has been much
justified criticism of a rule under which a
plaintiff who is charged with 49 percent of the
total negligence recovers 51 percent of his
damages, while one who is charged with 50
percent recovers nothing at all." (Prosser,
Comparative Negligence, supra, 41 Cal.L.Rev.
1, 25; fns. omitted.) In effect "such a rule
distorts the very principle it recognizes, i.e.,
that persons are responsible for their acts to the
extent their fault contributes to an injurious
result. The partial rule simply lowers, but does
not eliminate, the bar of contributory
negligence." (Juenger, Brief for Negligence
Law Section of the State Bar of Michigan in
Support of Comparative Negligence as Amicus
Curiae, Parsonson v. Construction Equipment
Company, supra, 18 Wayne L.Rev. 3, 50; see
also Schwartz, supra, § 21.3, p. 347.)
10
IV.
Questions and Comments
A.
What are the advantages and disadvantages of the contributory negligence rule
and the comparative negligence rule?
B.
How did the Supreme Court in Li v. Yellow Cab instruct the California courts
to apply the comparative negligence test?
C.
Pay attention to how the California Supreme Court struggled with the issue of
whether it, as opposed to the legislature, should be announcing the new rule of
comparative negligence. Over the past 20 years, State legislatures have
enacted sweeping reforms to limit plaintiffs’ recovery in tort. This movement,
known as “tort reform,” has included recovery caps on certain types of
negligence claims, limits on punitive damages in certain cases, and wholesale
removal of certain claims, e.g., worker’s injury case, from the court system
into an administrative scheme. What are the reasons for tort reform and who is
advocating the reform? Why was the reform made principally through the
legislative process as opposed to the judicial process?
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