Comparative Fault, 3d ed.

Henry Woods and Beth Deere Clark Boardman Callaghan 50 Broad St. East Rochester, NY 14694-0002 1,053 pp., $115

The intricacies of comparative fault continue to bedevil courts and commentators. In the past decade, settled principles of U.S. tort law concerning joint and several liability and contributory negligence have changed drastically. There is no uniformity among the states in rulings involving multiple parties and nonparties, apportionment of fault, and the determination of damages. All these changes and nuances in the law of comparative fault make a treatise like Comparative Fault, now in its third edition, especially helpful.

In this latest edition, which updates the law and presents it in a more accessible format, Henry Woods, U.S. District Court Judge for the Eastern District of Arkansas, and Beth Deere an attorney and law clerk to Woods, provide a comprehensive history and analysis of substantive and procedural aspects of comparative fault that will be welcomed by those who seek answers to many of the perplexing questions about the topic.

The starting place for most attorneys will be the 417-page appendix, which provides a state-by-state analysis of comparative fault issues. The authors review how comparative fault, or comparative negligence, came into existence (by statutory or judicial adoption in each state) and detail each state's rules and holdings regarding topics including assumption of risk, willful and wanton misconduct, wrongful death and survival, conflict of laws, joint and several liability, and products liability.

These issues are of great interest to judges and practitioners, particularly those who reside in states with no comprehensive comparative fault system like the Uniform Comparative Fault Act. The appendix is thorough and might only be improved by cross-referencing states that have reached similar holdings on specific issues or that have enacted similar statutes.

The chapter on jury instructions and interrogatories is helpful, if a bit short. Trial attorneys (and judges, for that matter) confront the most difficult issues of comparative fault when it comes time to review jury instructions and submit the verdict form to the jury.

For example, there is a substantial degree of variation in how each state defines "fault" for the purposes of comparative fault, particularly in pattern jury instructions. In many jurisdictions, the tension and interplay between principles of comparative fault and substantive doctrines such as strict liability, warranty, and negligence are most evident in how the case is presented to the jury in instructions and verdict forms.

As University of Arkansas law professor Robert LeFlar notes in the introduction, the strength of this book is that it provides a theoretical and precedential analysis of just about any problem that could arise in a comparative fault case and includes forms for most fact situations and multiparty cases in which special findings of fact are likely to be useful.

It should be stressed, however, that the book is more an overview of the issues, cases, and statutes relating to comparative fault than an exhaustive multivolume treatise. The book does not provide a complete analysis of many issues.

For example, on the question of how principles of comparative fault apply in a medical malpractice case, there are only four paragraphs of text and 11 case citations. In some areas, however, such as the section on products liability, the authors do provide a thorough discussion of the relevant case law.

The lack of comprehensive analysis is not entirely the fault of the authors. Comparative fault has become so pervasive in tort litigation that one volume alone can only do so much. At least those sections of the book that are incomplete provide enough information to point the reader in the right direction in the law library, which is much more than many works on the subject do.

One of the book's best features is its well-reasoned discussion of general principles of tort law. In fact, the book is well worth reading for its overview and analysis of fundamental tort law principles, separate and apart from any consideration of comparative fault issues.

The chapter on causation and comparative negligence includes a particularly useful analysis of proximate cause. There is an entire section devoted to causation and to the failure to use seatbelts and motorcycle helmets.

Comparative Fault will help plaintiffs' trial lawyers counter defense efforts to reduce or preclude plaintiffs' recoveries. Judge Woods's work has been a mainstay in the field of comparative fault and, with the third edition, will remain so.

David Randolph Smith practices law in Nashville, Tennessee.