Yehuda Adar, ‘Comparative Negligence and Mitigation of Damages: Two Doctrines in Search of Reunion’

This article addresses a puzzle in Anglo-American tort law. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) remains intact. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation mechanisms was identified by the drafters of the Third Restatement of Torts, which proposed abolishing mitigation altogether and subsuming it under comparative negligence. Surprisingly, this revolutionary proposition has thus far escaped the attention of the legal community. This is the first article ever to present a full-fledged account of the interrelation between comparative negligence and mitigation in tort law. It contributes to tort scholarship on three levels. First, on a purely analytical level, it systematically compares the doctrines, reveals their often overlooked similarities, and sharpens the distinctions between them. Second, the article exposes the theoretical tension seemingly generated by the coexistence of comparative negligence and mitigation in tort law. It offers an integrative thesis under which this tension may be relaxed, at least to a certain extent. Finally, on the normative level, this article challenges the widespread belief that the mitigation doctrine is morally sound and economically efficient. This is accomplished by exposing the theoretical limits of the aforementioned integrative thesis and by illustrating the unfairness to which the blind application of the doctrine may lead, particularly in cases where a victim’s failure to mitigate reflects an innocent misjudgment, rather than a reckless disregard of the duty to mitigate. At the same time, the article rejects the Restatement’s view that mitigation has no role under a regime of comparative responsibility. When the failure to mitigate represents a clear deviation from the values of solidarity, cooperation and mutual concern, which underlie comparative responsibility, then applying mitigation in its strict form may well be justified. Reforming, rather than abolishing, the mitigation doctrine will alleviate inevitable tensions within tort law and will ultimately add to its internal coherence and moral force.

Adar, Yehuda, Comparative Negligence and Mitigation of Damages: Two Doctrines in Search of Reunion (June 6, 2012).

First posted 2012-06-07 07:31:07

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