A Comparative Negligence Checklist to Avoid Future Unnecessary Litigation

Systems of comparative negligence, whereby the negligence of a plaintiff serves to reduce rather than to preclude tort recovery in negligence, have been adopted in thirty-nine states. The common law rule that contributory negligence is an absolute bar to recover is still the law in Kentucky, although modified by the doctrine of “last clear chance.” Kentucky may soon join the trend toward comparative negligence, however. In the last legislative session, bills to adopt comparative negligence were introduced in both the House of Representatives and the Senate. A hearing on this subject was held by the Interim Judiciary and Civil Procedure Committee in March, 1983, and it is likely that a comparative negligence bill will again be introduced in the 1984 session of the General Assembly. Although most states have adopted comparative negligence statutorily, a few have done so by court decision. Kentucky courts will soon have the opportunity to adopt comparative negligence. The Kentucky Supreme Court has recently granted discretionary review in a case in which the only issue preserved for appeal is the denial of the plaintiff’s request for a comparative negligence instruction to the jury. This Article will not attempt to assess the relative merits of contributory and comparative negligence. Presumably, those issues will be aired thoroughly before the legislature and the courts. However, many states which have decided either legislatively or judicially to adopt comparative negligence have failed to resolve in advance a number of accompanying issues. This failure has resulted in extensive litigation to “fill the gaps.” Such litigation can be avoided by anticipating issues likely to arise when the doctrine is adopted, and resolving the issues by careful statutory drafting or considered judicial opinion. This Article will examine several of the more important issues that should be addressed when comparative negligence is adopted. The issues to be discussed are: (1) how to apportion liability among multiple tortfeasors; (2) whether to retain the doctrine of last clear chance; (3) whether to permit setoff; and (4) what limits to put on jury instructions. Reasonable alternatives for each issue will be set out, with possible statutory language for the adoption of each alternative. The relative advantages and disadvantages of each alternative will then be discussed in light of the current state of Kentucky tort law, the underlying rationale for the adopting comparative negligence, and the type of comparative negligence system—pure or modified—adopted