The Use Of Comparative Negligence In Strict Liability Cases

The justification for comparative negligence defense is to be found in notions of fairness and self-responsibility.Comparative negligence is affirmative defense,based on the premise that the injurer's negligence is established.Thus the found of plaintiff's comparative negligence will not negate a defendant's behavior being found of negligence or causation.Although there is a morally difference between negligence and comparative negligence in the aspect of blameworthiness,the criteria for negligence and comparative negligence should be identical.This parallel treatment lies on the notion of self-responsibility.In strict liability actions,the existing justifications for imposing strict liability has various degrees of defects.Hence these theoretical grounds cannot be used to justify excluding or limiting the application of comparative negligence in strict liability actions.Therefore,first,in the absence of specific statutes,the comparative negligence can be applied to all forms of strict liability;second,in the action of strict liability,it is not true that only when the plaintiff's negligence constitutes gross negligence then comparative negligence applies.On the contrary,when comparative negligence is applied in strict liability actions,the ordinary negligence of plaintiff should be considered when assigning shares of responsibility.Once it is determined that a plaintiff's conduct constitutes negligence,then the nature of the conduct of all parties should be taken into consideration and the responsibility should be divided accordingly.The reason is that,first,from the factual point of view,causation cannot be compared.The current approaches of comparing causation cannot determine the “degree of contribution” of each cause to the damage.Thus we cannot determine the liability by comparing the causal potency or comparing causation;secondly,the existing method of comparing the degree of fault of each party through a single formula can not be used to apportion the share of responsibility,because the factors considered by these methods are not sufficient,and thus the method cannot fully evaluate the nature of behaviors;thirdly,it is not possible to apportion the responsibilities of the parties by setting a fixed formula and applying the formula in all cases.This fixed proportional responsibility division method is too rigid.