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Comparative Negligence And Mitigation Of Damages: Two Sister Doctrines In Search Of Reunion, Dr. Yehuda Adar

Yehuda Adar Dr.

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 …