Rescuing Avoidable Consequences From The Clutches of Remedies And Placing It In Apportionment of Liability, Where It Belongs

Michael D. Green & James Sprague

Comparative fault spread like contemporary wildfires beginning late in the 1960s. Although there are a few stragglers, it is now the law in forty-six states. Ultimately, this reform was fueled by a pent-up sense that contributory negligence was unfair. Why, advocates for comparative fault asked, should a loss be borne by one person when two parties acted unreasonably to cause that harm? Properly understood, we believe the same sense of fairness should be applied in the case of avoidable consequences, a remedial doctrine that imposes a loss entirely on one of two parties who unreasonably caused that loss.