I think it makes a difference, but honestly, I’m not 100 percent sure.
In a previous column, I wrote that, unlike liability and damages, proximate cause under IPI 15.01 is binary. That’s true as to causation of damages: It is or it isn’t. A plaintiff either does or does not connect his claimed damages.
Of course, we can often tell what jurors thought about causation by their awards for medical bills and wage loss.
But Paul Watkiss wrote to me with a very interesting point. When it comes to allocation among parties, causation may not be binary. Causation may be graded.
When we tell the jury to make allocations between parties and nonparties, maybe what we are asking them to do is calculate percentages of causation, not percentages of negligence.
This seems strange, and it’s not what I thought.
I always thought comparative negligence meant comparing respective degrees of negligence. For example, in one case, the negligence of a factory worker might be compared to the negligence of a punch-press manufacturer. In another, the negligence of a driver of an 80,000-pound semitrailer truck might be compared to the negligence of a pedestrian.
I thought the jury was to compare and divide the negligence to total 100 percent among all of the negligent parties. After all, it is called “comparative negligence.”
When I started practice, we had pure contributory negligence. If a plaintiff were even 1 percent contributorily negligent, he or she could not recover. Then we went to pure comparative negligence. If a plaintiff were even 99 percent contributorily negligent, he or she could still recover 1 percent of their damages.
Now we have modified comparative negligence: The plaintiff has to be less negligent than the defendant in order to recover.
And that is exactly what some instructions appear to say. IPI B10.03 says “the total amount of damages to which he would otherwise be entitled is reduced in proportion to the amount of his negligence. This is known as comparative negligence.”
That seems consistent with what I always thought.
However, that same instruction then goes on to say: “If the plaintiff’s contributory negligence is more than 50 [percent] of the total proximate cause of the injury or damage for which recovery is sought, the defendant shall be found not liable.”
The instruction does not say recovery is denied if plaintiff’s negligence is more than 50 percent of the total negligence.
In other words, the jury is told right away to compare and allocate causation. The jury determines each parties’ percentage, not of negligence, but of total causation.
If the plaintiff is negligent, and if his percent of causation is 50 percent or more of the total proximate cause, recovery is denied. This doesn’t sound as much like modified comparative negligence as comparative causation.
But it’s not all that clear. Other instructions say “fault” is to be compared. “Fault” is not defined for the jury, but instructions like IPI 1.03A distinguish admission of fault from admission of fault plus causation, IPI 1.03B.
In instructions like IPI 45.04B, the jury is specifically told to compare fault, not causation. “Assuming that 100 [percent] represents the total combined [negligence] [fault] [responsibility] of all [persons] [or entities] whose [negligence] [fault] [responsibility] proximately caused the death of [decedent], we find the percentage of [negligence] [fault] [responsibility] attributable to each as follows:”
These instructions clearly say fault is what is to be compared. Fault apparently means negligence, as shown by the difference between IPI 1.03A and B.
Still, other instructions might indicate that what is to be compared is both negligence and causation. For example, IPI B45.03A says, “Assuming that 100 [percent] represents the total combined legal responsibility of all [persons] …who proximately caused [plaintiff’s name] injury, we find the percentage of legal responsibility attributable to each as follows:”
“Legal responsibility” is a different and entirely new and undefined term. It could seem to imply a combination of fault and causation. These instructions seem to suggest the jury is to compare both fault and causation in one single heap.
So what is the jury supposed to compare? Negligence, causation or some combination of both?
Does any of this matter? Definitely maybe.
I would still say that causation of damages is binary: Yes or no. Experts testifying on causation have to take a stand one way or the other. No compromises.
The problem comes in the role of causation in allocating percentages of “legal responsibility” between parties. Interestingly, on this, no expert testimony is used.
Here’s why it may matter: If allocation between parties is based on comparative negligence, parties can argue that one or the other was more negligent and should pay more, regardless of which party’s conduct was more causative. The allocation is based simply on degrees of negligence.
On the other hand, if allocation is based on comparative causation, parties can argue that the actions of one party, perhaps even though less negligent, were more of the cause of plaintiff’s injuries.
I’ve never heard this point raised before. Maybe it’s sufficiently understood just as it is. Just angels dancing on the head of a pin.
Paul, thanks for the interesting question. I’d love to hear some other opinions.