(n151) See id. Dean Prosser observes, "This uneasy distrust of the twelve men and now women, in the box has bulked large in American negligence law; and it is significant that damage apportionment developed first, and succeeded best, in [non-American] courts where there is no jury to contend with."
(n152) See id. at 4 ("No one ever has succeeded in justifying that as a policy [i.e., visiting the entire loss on one of two parties that caused it], and no one ever will.").
(n153) Id. at 5-9.
(n154) "Indeed, since the apportionment of fault and damages is by nature a factual matter, virtually every ease must be given to the jury...." PROSSER & KEETON, supra note 4, at 470. "The first state to adopt a general comparative negligence act was Mississippi, which in 1910 enacted a statute applicable to all actions for personal injuries, and expanded it in 1920 to include damages to property." Id. at 471.
(n155) "Although by the 1960s only seven states had replaced contributory negligence with comparative fault ... the early 1970s and 1980s witnessed a surge of legislative and judicial action accomplishing the switch. As of 1982, some 40 states had adopted some general form of comparative negligence." Id.
(n156) This issue is whether to adopt the "pure" or "modified" forms of comparative negligence. See id. at 471-74. There are also the issues of whether negligence can be compared with intentional torts, see infra notes 233-58 and accompanying text, whether negligent misrepresentation is subject to comparative negligence treatment, see infra notes 259-71 and accompanying text, whether the plaintiffs negligence can be compared with the defendant's strict liability, see PROSSER & KEETON, supra note 4, at 478, and whether a jury determination of equal fault should permit recovery under modified comparative fault, see id., at 473.
(n157) One problem is whether in a modified system the trier of fact may compare the plaintiff's negligence with that of each defendant or only with the aggregate of all the defendants' fault (the unit rule). In PROSSER & KEETON, supra note 4, at 473, the authors point out that individual apportionment creates an incentive for the defendants to artificially increase the number of nominal defendants and discourages plaintiffs from joining defendants. This is so because, if every defendant is deemed to be less at fault than the plaintiff, the plaintiff recovers nothing even though his fault may be less than 50% overall.
Another problem is whether to consider the fault of immune or absent tortfeasors. Jurisdictions handle these eases differently. Some ignore the negligence of the phantom tortfeasors, thus allowing the trier of fact to allocate 100% of the fault to the plaintiff and the joined defendants. Others consider the fault of "phantom" defendants thus reducing the judgments against the joined defendants. Under a joint and several rule the plaintiff would still have a chance for full recovery, but under a several liability rule his chances would be less.
Under a joint and several rule, a defendant who has paid more than her equitable share, whether pro rata under an equality rule, or proportionate to fault under comparative fault principles, can