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Slightly-gross: South Dakota's addiction to a bad comparative negligence law and the need for change.

South Dakota is the only jurisdiction left in the United States that clings to a species of the archaic and ill-conceived comparative negligence law commonly referred to as the "slight-gross " rule. This article discusses the different forms of comparative negligence, the evolution of the slight-gross rule, and the development of slight-gross in South Dakota. This article will then analyze the problems associated with and arising from the slight-gross rule and tackle the primary obstacle to legislative action, the alleged increase of insurance costs. Finally, this article advocates for the South Dakota Legislature to abolish South Dakota's modified slight-gross rule and to join the vast majority of states operating under a more just comparative negligence rule.

I. INTRODUCTION

South Dakota was once a pioneer in the area of comparative negligence law. (1) The State was one of only five in the Union to adopt some form of comparative negligence by 1950 and mitigate the harsh application of the common law contributory negligence rule. (2) Since that time, however, litigation has exposed the deeply imbedded flaws, conceptual problems, definitional conundrums, and structural defects of the slight-gross rule and its progeny. (3) The ship that once carried South Dakota safely away from the squalls and shoals of contributory negligence has been taking on water for nearly seventy-two years and is no longer seaworthy. (4) The South Dakota Legislature patched the sinking vessel several times over the course of its long life and the South Dakota Supreme Court streamlined it as best the court could since the vessel's maiden voyage in 1941. (5) It is time to retire the once proud and reluctant vessel and fashion for ourselves a new, watertight ship capable of traversing the perils and pitfalls of the tortious sea. (6) The slight-gross rule and its progeny served their purpose, but the time has come to join the rest of our sister jurisdictions and craft a more just and workable rule. (7)

This article will first discuss the three different forms of comparative negligence (8): (1) contributory negligence, (9) (2) modified comparative negligence (10) along with its three sub forms, (11) and (3) pure comparative negligence. (12) Second, this comment will discuss the genesis of one of them, the slight-gross rule. (13) The slight-gross rule developed in response to the harsh contributory negligence rule, (14) but throughout its historical life, experiments with the slight-gross comparative negligence scheme failed by judicial fiat in all the states. (15) Third, this article will explore in-depth the history of South Dakota's slight-gross comparative negligence law. (16)

Fourth, once this comment addresses the background of the slight-gross rule in general and in South Dakota, this comment will pinpoint why the slight-gross rule ultimately fails and does not provide a tenable standard. (17) After a general critique of the slight-gross rule, (18) this comment will identify and deconstruct five particular problems associated with the rule: (1) the conceptual problem, (19) (2) the primordial problem, (20) (3) the definitional problem, (21) (4) the excessive appeals problem, (22) and (5) the better-rules problem. (23)

Fifth and finally, once this comment lays bare the conceptual and practical difficulties of the slight-gross rule, this comment will offer several alternatives to South Dakota's current formulation and recommend the South Dakota Legislature adopt a new comparative negligence statute (24) After recommending a change, this article will discuss and overcome the greatest hurdle to adopting a new rule: the myth of increased insurance rates and the other expenses. (25) In all, the intention of this article is to move forward the ongoing discussion of comparative negligence law and contribute to the eventual abolishment of the slight-gross rule in South Dakota. (26)

II. BACKGROUND

The background is divided into three broad sections: the alternative forms of comparative negligence, the history of comparative negligence with an emphasis on the slight-gross rule, and South Dakota slight-gross history. (27) The general history of the comparative negligence section contains the following subsections: contributory negligence, (28) the birth of comparative negligence and slight-gross, (29) the failure of slight-gross by judicial fiat, (30) and the legislative attempts at slight-gross. (31) Following the general history of the comparative negligence section, this article will delve into the complexities of South Dakota comparative negligence law since its genesis over seventy-one years ago. (32)

A. FORMS OF COMPARATIVE NEGLIGENCE

Traditionally, comparative negligence can be broken down into three main categories: (1) contributory negligence, (33) (2) modified comparative negligence, (34) and (3) pure comparative negligence. (35) Within the category of modified comparative negligence, there are three different types: the slight-gross rule, (36) the less than ("49/51") rule, (37) and the less than or equal to ("50/50") rule. (38) Because the contributory negligence rule and the slight-gross rule will be analyzed in depth throughout this comment, this section will focus on the three other alternatives, namely the 49/51 rule, the 50/50 rule, and pure comparative negligence rule. (39) Two standards in particular, the less than or equal to ("50/50") rule and the pure comparative negligence rule, appear to be the best alternatives for the South Dakota because each rectifies the problems associated with the slight-gross rule. (40)

1. The Less Than Rule (49/51 Rule)

The first rule is the 49/51 rule, which allows a plaintiff to recover when her negligence is less than the defendant or defendants' negligence. (41) Put in another way, the plaintiff is barred from recovery when her negligence is equal to or greater than the defendant(s)' negligence. (42) This is dubbed the 49/51, or forty-nine percent rule, because a plaintiff may recover when the plaintiffs negligence is forty-nine percent or less. (43) If the plaintiffs negligence is less than the negligence of the defendant(s), the plaintiff is allowed to recover but the reward is diminished in proportion to plaintiffs negligence. (44) Nebraska adopted this form of comparative negligence when it abolished the slight-gross scheme in 1992 (45) Currently, twelve states use this system. (46) William Prosser (47) criticized this scheme because it, too, led to numerous appeals and general infeasibility, commenting that "[i]t appears impossible to justify the rule on any basis except one of pure political compromise." (48)

2. The Less Than or Equal To Rule (50/50 Rule)

The second form of modified comparative negligence is the 50/50 rule, and it allows a plaintiff to recover when her negligence is less than or equal to the negligence of the defendant or defendants. (49) Put in another way, the plaintiff is barred from recovery when her negligence is greater than the negligence of the defendant(s). (50) It is called the 50/50 or fifty percent rule because a plaintiff may be equally as negligent as the defendant(s) and still recover. (51) Like the forty-nine percent rule, the plaintiffs reward is diminished in proportion to the plaintiffs negligence. (52) This is the majority rule in the United States with twenty states having adopted it. (53)

3. Pure Comparative Negligence

The last of the comparative negligence schemes is the pure comparative negligence rule. (54) Under this system, a plaintiff may recover the portion of the award for which she is not liable. (55) The plaintiffs damage award is reduced in proportion to her contributory negligence. (56) For example, a jury may apportion the plaintiffs negligence at ninety percent and the defendant's negligence at ten percent; the plaintiff would then recover ten percent of the total jury award because she was contributorily negligent for the other ninety percent. (57) Currently, twelve states, (58) the Federal Government, (59) Puerto Rico, (60) and admiralty cases follow this rule. (61)

B. HISTORY OF COMPARATIVE NEGLIGENCE WITH AN EMPHASIS ON SLIGHT-GROSS

1. Contributory Negligence

The varying schemes of comparative negligence have their roots in the English common law doctrine of contributory negligence. (62) The King's Bench in England formulated the doctrine in the (1809) case of Butterfield v. Forrester (63) In this case, the King's Bench denied Butterfield relief from an incident in which Butterfield was thrown from his horse after striking a pole left by Forrester next to the road. (64) The court reasoned that although Forrester was negligent for leaving the pole adjacent to the road, Butterfield was also negligent--i.e. contributorily negligent--by riding too fast and failing to avoid the pole. (65) In his opinion, Lord Ellenborough held Butterfield could not and should not recover because he failed to use ordinary care. (66) Thus, because Butterfield failed to use ordinary care, the court established the doctrine of contributory negligence, which acts as a complete bar to a plaintiffs recovery. (67)

The rule promulgated in Butterfield spread to the United States in the 1820s (68) and remained the dominant rule throughout the nineteenth century and into the early twentieth century, (69) even in South Dakota. (70) Legal scholars have posited that the contributory negligence rule became popular and disseminated throughout the United States as a method of preventing plaintiff-oriented juries from awarding large verdicts against burgeoning businesses (especially the railroad industry) during the Industrial Era. (71) The late torts scholar William Prosser suggested that the origin "lies merely in the highly individualistic attitude of the common law of the early nineteenth century." (72) A few jurisdictions, however, recognized the severity and injustice of the contributory negligence rule during the nineteenth and early twentieth centuries and developed minor modifications to the rule. (73) As of today, all states have modified contributory negligence in some fashion, either puncturing the rule with exceptions or abrogating it in favor of comparative negligence. (74) The most famous exception to contributory negligence is the "last clear chance" exception, (75) which originated in England with the seminal case of Davies v. Mann. (76) The last clear chance exception "allows a plaintiff to recover despite his own negligence in some cases where the defendant's 'negligent act was the final decisive cause of the accident.'" (77) The exception spread rapidly in United States jurisprudence (78) during the nineteenth and twentieth centuries and persists today in some states. (79) South Dakota still maintains this exception in its jurisprudence (80) because the State has not completely abrogated the common law doctrine of contributory negligence. (81)

2. Birth of Comparative Negligence and Slight-Gross

The first attempt to change contributory negligence to comparative negligence in the United States occurred in 1858 when the Supreme Court of Illinois handed down Galena & C.U.R. Co. v. Jacobs ("Jacobs"). (82) There, the Supreme Court of Illinois employed the slight-gross comparative negligence rule. (83) Thus, the first comparative negligence rule in the United States was the slight-gross rule. (84) In this case, Jacobs, a four-year-old boy, attempted to cross some railroad tracks in order to visit a friend who lived in house next to the tracks. (85) Galena & Chicago Union Railroad owned the railroad tracks and the adjacent houses in an effort to provide homes for the employees of the company. (86) The railroad extended permission to employees and their families to traverse the tracks, but not trespassers such as Jacobs. (87) A train operated by Galena struck Jacobs and severely injured him. (88) The boy's family--the plaintiffs--established $15,000 worth of damages and the trial court awarded the plaintiffs $2,000. (89) Galena & C.U.R. Co.--the defendant--appealed alleging that contributory negligence was a complete bar to the plaintiffs recovery. (90)

The Supreme Court of Illinois reversed and remanded, holding "that in this, as in all like cases, the degrees of negligence must be measured and considered, and wherever it shall appear that the plaintiffs negligence is comparatively slight, and that of the defendant gross, he shall not be deprived of his action." (91) The Supreme Court of Illinois' holding fashioned what is now commonly referred to as the slight-gross comparative negligence rule because the rule allowed the plaintiff to recover the full damage award so long as the plaintiffs negligence was slight and the defendant's negligence was gross in comparison. (92) Under this particular version of the slight-gross rule, a plaintiff could recover the full amount of the damage award from the defendant if, and only if, the plaintiffs negligence was slight or less than slight. (93) Thus, under Jacobs, comparative negligence was born in the United States. (94)

3. Failure of Slight-Gross by Judicial Fiat

Jacobs, while it was the first United States case to employ the slight-gross form of comparative negligence in the context of railroad accidents, was not the first case to distinguish between "degrees of negligence." (95) The concept of degrees of negligence--i.e. slight, ordinary, and gross negligence--may be traced to Roman law (96) and continued into England with the law of bailments. (97) The concept arose as a way of delineating between "actual variations in negligence itself," i.e., the concept of negligence may be segregated into three distinct categories of actionable negligence. (98) This tri-parte system of negligence has been criticized as "a medieval figment," which was later adopted by English common law. (99)

The slight-gross rule promulgated by Jacobs and its progeny soon proved to be unworkable in Illinois, resulting in numerous appeals and definitional problems of the terms "slight" and "gross." (100) According to renowned torts scholar William Prosser, the slight-gross rule in Illinois "broke down under the sheer weight [and] ... difficultly of applying the bailment rule to the complications of other negligence cases...." (101) After struggling with the doctrine and its application for nearly thirty-five years, the Supreme Court of Illinois eventually repudiated it completely in 1894. (102)

The failure of the slight-gross rule in Illinois did not discourage several other states from experimenting with it through judicial adoption during the nineteenth and early-twentieth centuries. (103) Kansas, (104) Oregon, (105) Wisconsin, (106) and Tennessee (107) all adopted the slight-gross rule in the late 1800s and early 1900s via their Supreme Courts but quickly learned, as Illinois did, that the doctrine created more problems than it solved. (108) None of these states held onto the slight-gross rule past 1900; they either expressly repudiated it, declined to follow it, or allowed it to die. (109)

4. Legislative Attempts at Slight-Gross

Even though judicial adoptions of the slight-gross rule failed in all the states that experimented with it, several other states' legislatures enacted slight-gross damage apportionment statutes. (110) Ohio, (111) Alaska, (112) California, (113) Washington D.C (114) Wisconsin (115) Nebraska, (116) and South Dakota all passed slight-gross comparative negligence laws. (117) All but two (118) of these states legislatively adopted and applied the slight-gross rule only to railroad or labor liability suits. (119) The first state to apply the slight-gross rule to all negligence actions, not just railroad or labor liability actions, was Nebraska in 1913. (120) The statute provided:

   [I]n all actions brought to recover damages for injuries to a
   person or to his property caused by the negligence of another, the
   fact that the plaintiff may have been guilty of contributory
   negligence shall not bar a recovery when the contributory
   negligence of the plaintiff was slight and the negligence of the
   defendant was gross in comparison but the contributory negligence
   of the plaintiff shall be considered by the jury in the mitigation
   of damages in proportion to the amount of the contributory
   negligence attributable to the plaintiff; and all questions of
   negligence and contributory negligence shall be for the jury. (121)


In addition to assigning liability using the "degrees of negligence" scheme from bailment law, the statute specifically contemplated reduction of damages. (122) Whereas the states that judicially adopted the slight-gross rule in the past allowed a plaintiff to recover the total jury award, the Nebraska Legislature forbade a plaintiff from recovering the portion of the damages attributable to her. (123) The reduction-of-damages section in the Nebraska statute represented a legislative compromise--an attempt to avert the catastrophes and pitfalls of the earlier judicial adoptions of the slight-gross rule by mimicking the Federal Employers' Liability Act of 1908, which also had a reduction of damages provision. (124) After nearly eighty years, Nebraska finally repudiated the slight-gross rule in 1992, (125) which left South Dakota as the only remaining state to employ a slight-gross rule. (126)

C. SOUTH DAKOTA HISTORY (127)

Other than Nebraska, the only other state to embrace the slight-gross comparative negligence rule and apply it to all actions was South Dakota. (128) Prior to embracing the slight-gross rule, South Dakota followed the common law rule of contributory negligence, which completely barred a plaintiffs recovery if she was found guilty of negligence. (129) In the 1934 case Wittstruck v. Lee, the South Dakota Supreme Court specifically considered and rejected the doctrine of comparative negligence and the concept of degrees of negligence. (130) As a result, the South Dakota Supreme Court declined to adopt any comparative negligence scheme. (131)

In 1941, twenty-eight years after Nebraska promulgated its own statute and seven years after the South Dakota Supreme Court refused to espouse comparative negligence, the South Dakota Legislature enacted a slight-gross comparative negligence statute. (132) The statute provided:

In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of the contributory negligence attributable to the plaintiff; and all questions of negligence and contributory negligence shall be for the jury. (133)

The legislature enacted the statute with the intention that the statute would apply in all instances in which the fact finder could draw an inference of the plaintiff's negligence. (134) A review of the case history indicates that a vast majority of the cases involve automobile accidents. (135)

1. Friese v. Gulbrandson: First Application of Comparative Negligence Statute

In 1943, and only two years after the statute's enactment, the South Dakota Supreme Court handed down Friese v. Gulbrandson, which provided the court its first opportunity to apply the statute. (136) In this case, the plaintiff approached an intersection from the east at about thirty to forty miles per hour and the defendant approached from the south at sixty miles per hour. (137) The plaintiffs and defendant's vehicles collided at the center of the intersection, injuring the plaintiff. (138) The defendant alleged the plaintiffs negligence--speeding as he approached the intersection (139)--barred him from recovery because the plaintiffs negligence was more than slight and the defendant's negligence was less than gross. (140) The court determined that because the South Dakota Legislature copied the Nebraska statute verbatim, the Legislature intended the statute to function in the same way. (141) In reaching this conclusion, the South Dakota Supreme Court looked to and imported Nebraska case law to support its decision. (142) By incorporating Nebraska case law, the court held that the statute only applies to cases where there is an inference of the plaintiffs contributory negligence. (143) While there certainly was an inference of the plaintiffs negligence per se, the court held that the comparative negligence statute was not applicable because the plaintiffs negligence was more than slight based on the undisputed facts of the case. (144)

The import of Nebraska law was not without its problems and consequences. (145) The first hurdle addressed by the South Dakota Supreme Court was the constitutionality of the statute. (146) The court quickly dismissed this issue, however, because the constitutionality of the statute was not essential to the outcome of the case. (147) The second, more difficult hurdle necessitated some legal maneuvering by the court as precedent seemingly contradicted with legislative enactment. (148) The terms "slight" and "gross" negligence, as previously discussed, are historically rooted in the law of bailments, which recognized and adhered to degrees of negligence. (149) Neither South Dakota nor Nebraska recognized degrees of negligence. (150) Without recognizing degrees of negligence, the Nebraska Supreme Court held, "Any one of common sense knows that slight negligence actually means small or little negligence ..." (151) South Dakota, for reasons unknown, did not follow Nebraska's lead and promulgate the same definition of "slight," but rather defined it as "a quantum of want of such ordinary care as a reasonable man would exercise under the circumstances." (152) It further defined the term as "small of its kind or in amount; scanty; meager," (153) which was congruent with common usage of the word at the time and the commonly accepted rules of statutory construction. (154)

The South Dakota Supreme Court did not toil over the definition of gross; the court held gross to mean "gross or great." (155) In ruling on the case, the court neither repudiated its precedent (and recognized degrees of negligence) nor invalidated the newly adopted statute. (156) Because the court could not and did not develop a more precise definition of "slight," it decided that "slight" means something different in every case. (157) While the lack of a precise definition of this pivotal term may have rendered the statutory scheme more malleable, the court set the stage for what continues to be the central tension of the slight-gross negligence scheme, proper definition. (158)

2. Evolution of Slight-Gross through the 1940s, 1950s, and 1960s

Following Friese v. Gulbrandson, the Supreme Court of South Dakota announced two other particularly noteworthy cases in the 1940s. (159) In Kundert v. B.F. Goodrich Co., the court announced that "where it is a matter of declaring a standard of conduct or where undisputed facts are of such a nature that reasonable men could not differ as to whether the exhibited conduct conforms to established conduct, the question is one of law for the court." (160) This would seem to contradict the statutory edict that "all questions of negligence and contributory negligence shall be for the jury." (161) To date the South Dakota Supreme Court has not commented on this issue as questions of contributory negligence can still be determined as a matter of law. (162)

The other major case decided in the late 1940s was Roberts v. Brown. (163) This case took up the seemingly daunting and impossible task of trying to promulgate better definitions of both "slight" and "gross." (164) The Supreme Court began by acknowledging the "intrinsic" difficulty--a la Friese (165)--of trying to formulate a proper definition. (166) After an exhausting and grueling review of almost twenty cases (mainly from Nebraska), the Court resigned its effort:

   Because of the uncertainty intrinsic in this statute it is apparent
   that each case must be determined upon the facts presented. There
   is no exact rule or standard that can be fixed for its application.
   We have read a number of cases from Nebraska, from whence our
   statute came, and are unable to determine any fixed rule or
   standard which accounts for the results reached in the several
   cases.... The result seems to depend upon the composite judgment
   of the members of the court as to whether reasonable men might
   differ upon the question of whether plaintiffs acts constitute
   negligence more than slight. (167)


The only sliver of insight offered by the court as to what constitutes less-than-slight negligence was if the plaintiff takes "certain precautions for his own safety and the safety of others." (168) As for gross negligence, the court minimized its importance and made clear what seemed to be apparent in the statute: the defendant's negligence must be great in comparison to the plaintiffs. (169)

During the 1950s and early 1960s, the South Dakota Supreme Court promulgated several influential decisions covering issues of constitutionality, (170) wrongful death, (171) percentage assignments, (172) and last clear chance. (173) The court analyzed whether the slight-gross comparative negligence statute was constitutional under article III, section 21 of the South Dakota Constitution. (174) In Stone v. Hinsvark, the appellant contended that the statute was misleading because the title of the slight-gross statute was one to "Abrogate the Rule of Contributory Negligence as Now Existing." (175) The majority of the court held the statute to be constitutional because "[t]he phrase 'as Now Existing' gives notice that the Act modifies, but does not abolish, the law of contributory negligence." (176)

The decision on the constitutionality of the statute was not unanimous, however, as Justice Smith opined that the law did not pass muster under article III, section 21 of the South Dakota Constitution. (177) Judge Smith reasoned that the statute was "misleading and deceptive" because presumably the statute conflates the doctrines of comparative and contributory negligence. (178) Stone is also significant because the court ruled that the comparative negligence statute applies to wrongful death cases. (179)

In Fossum v. Zurn, the South Dakota Supreme Court rejected the method of assigning percentages as to what constitutes "slight" and "gross" as a matter of law. (180) This would seem like the most appropriate and effective way to apportion damages in a comparative negligence system and, indeed, most jurisdictions utilizing a comparative negligence system require the fact finder to apportion fault on a percentage basis between the parties. (181) Once the fact finder attributes fault between the parties, the plaintiffs award is reduced by his percentage of fault. (182) In Fossum, the jury found the plaintiffs contributory negligence was ten percent of the total negligence causing plaintiffs injuries. (183) On appeal, the defendant contended a ten percent contribution of fault was "more than slight" as a matter of law and, thus, necessitated a verdict in his favor. (184) The court rejected the defendant's contention and held it is for the jury to determine what constitutes slight. (185)

In the 1960 South Dakota Supreme Court decision Vlach v. Wyman, the court clarified the state's position on the last clear chance doctrine and its relation to the comparative negligence statute. (186) The court characterized "the doctrine of last clear chance as a rule of proximate cause" and "not incompatible or in conflict with our rule of statutory comparative negligence." (187) This comports with earlier precedent that indicated the comparative negligence statute did not completely abrogate the common law contributory negligence doctrine. (188) Further, the court previously held that the comparative negligence statute only applies when there is an inference of the plaintiffs negligence. (189) Thus, the doctrine of last clear chance is still alive and applicable in South Dakota. (190)

3. The 1964 Amendment to the South Dakota Statute

Until 1964, there was some confusion as to how exactly a jury should compare the slight negligence of the plaintiff with the gross negligence of the defendant under the statutory scheme. (191) The Eighth Circuit Court of Appeals, per Justice Harold Blackmun, (192) interpreted South Dakota precedent under the 1941 comparative negligence statute to require two measurements:

   [N]amely, the determination of the plaintiffs own negligence on an
   absolute basis and then the comparison of the plaintiffs negligence
   with that of the defendant. Thus, in order to sustain a recovery,
   the plaintiffs negligence must be slight according to an absolute
   scale and, as well, the defendant's negligence must be gross in
   comparison with the plaintiffs. (193)


The statutory scheme also mandated that the court make a preliminary determination of the plaintiffs slight negligence before applying the statute. (194) Thus, a jury would be allowed to compare the plaintiffs and defendant's negligence only when the court determined that the plaintiff was slightly negligent in an absolute sense. (195) Then, once the court permitted the jury to make the determination, the jury compared the plaintiffs negligence to the defendant's negligence relative to one another. (196)

Believing this statutory scheme to be untenable, South Dakota Supreme Court Justice Charles Hanson wrote a law review article inviting the South Dakota Legislature to eliminate the requirement that the plaintiffs conduct be evaluated under the ordinary or prudent man standard (i.e. the absolute sense). (197) The Nebraska Supreme Court had interpreted its comparative negligence statute (the statute South Dakota copied) to compare the plaintiffs and defendant's negligence relative to each other, so an amendment to the statute would bring South Dakota into line with Nebraska's interpretation. (198) In 1964, the legislature passed an amendment ("the 1964 amendment") to the 1941 statue that provided:

   In all actions brought to recover damages for injuries to a person
   or to his property caused by the negligence of another, the fact
   that the plaintiff may have been guilty of contributory negligence
   shall not bar a recovery when the contributory negligence of the
   plaintiff was slight in comparison with the negligence of the
   defendant but in such case, the damages shall be reduced in
   proportion to the amount of plaintiffs contributory negligence.
   (199)


The South Dakota Supreme Court subsequently accepted Judge Hanson's recommendations in Nugent v. Quam and interpreted the amended statute to compare the plaintiffs and defendant's negligence relative to one another rather than to the ordinary man. (200)

4. Case Law Post the 1964 Amendment to 1997

The South Dakota Supreme Court affirmed the definition of "slight" originally posited in Friese but modified it to reflect the legislative amendment. (201) Friese described "slight" as "a quantum of want of such ordinary care as a reasonable man would exercise under the circumstances." (202) Because the 1964 amendment required a direct comparison of the plaintiffs and defendant's negligence, the court held in Nugent:

   [I]t seems not only helpful but necessary to start with the
   standard of care of the ordinarily reasonable and prudent man, not
   used as an absolute standard of conduct for either one separately,
   but for a determination of the extent to which each fell below the
   standard for use in comparing the quantum of want of ordinary care
   exercised by the plaintiff with the quantum of want of ordinary
   care exercised by the defendant. (203)


Thus, the court requires that a preliminary determination of negligence be made under the reasonable-man standard before the plaintiffs and defendant's negligence are directly compared. (204) If the court finds that each party is guilty of negligence under the reasonable-man standard, the trier of fact determines whether the plaintiffs negligence was slight compared to the defendant's negligence. (205) The defendant's negligence no longer has to be gross. (206) In effect, Nugent developed a two-part test for contributory negligence in South Dakota. (207)

Following Nugent, the South Dakota Supreme Court sought to flesh out the newly ordained two-step analysis. (208) First, in order for the comparative negligence statute to apply, there must be an inference that both parties were negligent. (209) This preliminary analysis is apparently left to the court. (210) The second step is for the jury to compare directly the plaintiffs negligence to the defendant's negligence and, if the plaintiffs negligence is more than slight, the plaintiff cannot recover. (211) South Dakota continues to follow the two-step analysis formulated in Nugent. (212)

In Crabb v. Wade, the court made clear that what constitutes "slight" differs in every case. (213) The court acknowledged the elimination of the gross requirement "enlarged or expanded the scope" of slight contributory negligence in South Dakota law. (214) Slight contributory negligence is a "relative and variable term [that defies] precise definition and prohibits an arbitrary mathematical ratio limitation." (215) Accordingly, conduct that exceeds slight negligence in one action (barring recovery) may be less than or equal to slight negligence under different circumstances (allowing recovery). (216)

For example, in Engle v. Stock the plaintiff was found to be contributorily negligent per se (as a matter of law on a directed verdict) when she drove on the wrong side of the street, violating S.D.C.L. section 32-26-1. (217) In Crabb v. Wade, the decedent's heirs were allowed to recover in a wrongful death action even though the decedent walked down the wrong side of the highway in violation of chapter 151 of the South Dakota Sessions Laws of 1961. (218) In both instances, the plaintiffs violated a safety statute, constituting negligence per se; the court denied recovery in the prior but allowed recovery in the latter instance. (219)

The law is further clouded when one considers that determinations of negligence, contributory negligence, and the comparison of the parties' negligence are typically questions of fact reserved for the jury, (220) but on occasion, the court decided what constitutes more-than-slight negligence as a matter of law (221) However, precedent in South Dakota supports the proposition that when the evidence warrants an inference of negligence by the parties and the jury compares the parties' negligence, the court will not disturb a jury verdict. (222) The comparative negligence statute requires that the plaintiffs award be reduced in proportion to the amount of negligence the plaintiff contributed. (223)

South Dakota's modified slight-gross system of comparative negligence became the last of its kind in 1992 once Nebraska abolished its version. (224) South Dakota also experienced some changes in its comparative negligence scheme during the 1990s, although it did not abandon the slight-gross framework. (225) In 1992, the South Dakota Supreme Court handed down Chambers v. Dakotah Charter, Inc., (226) which abandoned lex loci delecti and adopted the "significant relationship test" (227) as the state's choice of laws approach. (228) In employing the significant relationship test, the court held that South Dakota comparative negligence law, not Missouri's law, applied to a slip-and-fall accident occurring in Missouri. (229) Thus, South Dakota's modified slight-gross rule was expanded to govern accidents occurring in other states when the significant relationship test is satiated. (230)

5. Wood v. City of Crooks; Setting the Ceiling on "Slight" Negligence

Perhaps the most important and influential case in the 1990s was Wood v. City of Crooks (231) In this case, the plaintiff crossed train tracks on the edge of Minnehaha County in the City of Crooks, South Dakota. (232) While she attempted to cross, a train operated by Burlington Northern Railroad collided with the plaintiff causing her injury. (233) Plaintiff sued the railroad, the City of Crooks, and Minnehaha County and settled with the railroad and the County prior to trial. (234) The jury apportioned the plaintiffs negligence at thirty percent, the City's negligence at thirty percent, the Railroad's negligence at twenty percent, and the County's negligence at twenty percent and allowed the plaintiff to recover. (235)

The City of Crooks appealed the verdict, arguing that the plaintiffs negligence should only be compared to the non-settling defendant's negligence, which would bar plaintiffs recovery. (236) On appeal, the South Dakota Supreme Court disagreed with the City's contention and explained that the plaintiffs negligence is compared to all defendants, not just the non-settling defendants (237) However, the court reversed the jury verdict and held the plaintiffs thirty percent contributory negligence was more than slight as a matter of law compared to the defendants' combined seventy percent negligence. (238)

In its decision, the court acknowledged that the question of comparative negligence was properly submitted to the jury, but the court retains the power to decide what constitutes more than slight as a matter of law. (239) In so holding, the court appeared to set the ceiling for what constitutes slight negligence. (240) However, the thirty percent ceiling could be compartmentalized to apply only to the circumstances of this case, considering other precedent. (241) The holding violates stare decisis in that it "tend[s] to indicate that as long as the defendant's negligence is greater than the plaintiffs, the plaintiffs negligence will not bar recovery." (242) Finally, it would seem to defy directly the court's own mandate in Crabb that the definition of slight defies "arbitrary mathematical ratio limitation." (243) The South Dakota Supreme Court did determine that the plaintiffs negligence shall be compared to all defendants involved in the action, not just a single defendant or each defendant separately. (244)

6. Legislative History from 1998 to the Present

a. 1998 Legislative Amendment

Following the Wood v. City of Crooks decision in 1997, the South Dakota Legislature amended S.D.C.L. section 20-9-2. (245) The legislative history of House Bill 1315 indicates the House and Senate amended it a few times before it became final (246) The bill escaped the House Judiciary on February 9, 1998. (247) Upon reaching the floor of the House of Representatives, the legislators successfully amended the bill by a vote of 60-8 to abolish the modified slight-gross statute. (248)

House Bill 1315 proceeded to pass by a margin of 48-20 (excused 2) in the House of Representatives in its amended form. (249) However, once it reached the Senate Judiciary, the bill in its amended form stalled, and the Senators further amended the bill to reinstate the modified slight-gross rule. (250) The bill glided through both the Senate and House of Representatives, receiving little resistance and becoming the new law of South Dakota effective July 1, 1998. (251) The new amendment forbade juries from revealing any special interrogatories used to determine the relative negligence of each party in an action involving contributory negligence, notwithstanding Wood v. City of Crooks. (252) Thus, the apparent motive of the legislature was to prevent the parties in a negligence action from discovering their relative fault and the total damage award. (253)

b. 2001 Legislative Session

In 2001, the South Dakota Legislature again tried to change the comparative negligence law in South Dakota. (254) The bill as introduced sought to abrogate the modified slight-gross negligence scheme in South Dakota by eliminating the "slight in comparison" language in favor of "less than," thereby allowing a plaintiff to recover whenever his negligence was less than the defendants? (255) The Senate subsequently changed the bill to remove "less than" and reinsert "slight in comparison," reflecting a legislative compromise to keep the modified slight-gross system and simply defining "slight in comparison." (256) The crafters of the bill proposed the following: "slight in comparison means that the contributory negligence of the plaintiff was less than forty percent of the total negligence of all parties." (257) After narrowly passing in the Senate and the House Judiciary, the bill died in the House of Representatives by a vote of 21-48 (excused 1). (258)

c. 2010 Legislative Session

Last, but certainly not least, the most recent effort to change the modified slight-gross standard occurred in 2010 when Senators and Representatives alike sponsored a bill to transform South Dakota comparative negligence law. (259) Like its predecessors, the bill was designed to allow a plaintiff to recover if the plaintiffs negligence was less than the negligence of the defendant or defendants. (260) This attempt proved to be another failure as the bill died in the Senate without making it to the House of Representatives. (261) To date, the South Dakota Legislature has failed to abrogate the modified slight-gross rule. (262)

7. Case Law since the 1998 Amendment

While the South Dakota Legislature found little success in changing the modified slight-gross scheme, the South Dakota Supreme Court promulgated several important decisions during the 2000s. (263) In Parker v. Casa Del Rey-Rapid City, Inc., the court affirmed the existence of both the contributory negligence doctrine and assumption of the risk in South Dakota, maintaining that the two are compatible when the facts of the case warrant submission of each issue to a jury. (264) Likewise, in Duda v. Phatty McGees, Inc., the South Dakota Supreme Court pointed to the fact that comparative negligence and assumption of the risk are both alive and good law. (265) The court provided that "[t]he standard to be applied [for assumption of the risk] is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence." (266) In her dissent, Justice Meierhenry questioned the compatibility of the assumption of the risk doctrine and the comparative negligence scheme, claiming, "Some jurisdictions have determined that comparative negligence has subsumed assumption of the risk and is not a complete bar to recovery." (267)

In the case of Johnson v. Armfield, the defendant backed his vehicle out of a local gym in Sioux Falls and collided with the plaintiff who was travelling north. (268) While the defendant admitted he was negligent in failing to see the plaintiff, the defendant alleged the plaintiff was speeding. (269) The defendant argued speeding would constitute contributory negligence and, potentially, bar the plaintiff from recovering. (270) The court granted the defendant's request over the plaintiffs objection to submit a jury instruction on contributory negligence and the jury returned a verdict in favor of the defendant. (271)

The South Dakota Supreme Court reversed and remanded the case. (272) The court reasoned "[c]ontributory negligence is a breach of duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause." (273) The defendant bears the burden of proof in asserting an affirmative defense and must demonstrate or at least establish sufficient evidence to warrant an inference of the plaintiffs contributory negligence. (274) Because the defendant merely relied on his own testimony to establish his affirmative defense and did not provide any other evidence, the court held it was prejudicial error to allow the jury to consider the contributory negligence defense. (275)

The South Dakota Supreme Court held in 2005 the affirmative defense of contributory negligence is also available in medical malpractice cases. (276) In Dodson v. South Dakota Dept, of Human Resources, a young woman, who suffered from manic depression and bipolar disorder, committed suicide one day after the South Dakota Human Services Center released her from care. (277) The decedent's estate brought suit alleging medical malpractice against two doctors, Avera McKennan Hospital (decedent's previous care facility), the South Dakota Human Services Center, and the South Dakota Department of Human Services. (278) The defendants asserted the affirmative defenses of assumption of the risk and contributory negligence. (279)

After a five-day trial, the jury found for the defendants because, while some of the defendants were negligent, the decedent's negligence was more than slight. (280) The court discussed at length whether the contributory negligence or comparative negligence defense is applicable in medical malpractice cases, particularly with respect to suicide cases. (281) The court held:

   [A] mentally ill person should be required only to exercise such
   care as he or she is capable of exercising; this is the standard of
   care of a person of like mental capacity under similar
   circumstances. Under this standard the jury should be instructed to
   apply a subjective or capacity based test to a mentally ill
   plaintiffs conduct rather than the objective reasonable person
   standard which they were told to apply in this case. (282)


Because the trial court gave the wrong instruction using the reasonably prudent person (objective) standard, the court reversed and remanded the case." (283) Thus, contributory negligence is applicable in professional negligence cases, including medical malpractice cases and suicide cases. (284)

D. RE-CAP OF THE SOUTH DAKOTA SLIGHT-GROSS RULE

The South Dakota Supreme Court erected what would become the foundation of comparative negligence law during the 1940s, 1950s, and 1960s, the most notable case being Friese v. Gulbrandson in 1943. (285) The South Dakota Legislature then amended the comparative negligence statute in 1964 to modify the analysis that, hitherto, conflicted with Nebraska's application of a largely similar statute. (286) The South Dakota Supreme Court interpreted the amendment to require a two-step analysis in which a court makes a preliminary determination of negligence on an absolute scale followed by a direct comparison of the plaintiffs and defendant's relative negligence. (287) In the 1990s and early twenty-first century, both the courts and legislature grappled with provocative permutations of the inherent difficulties first identified in South Dakota's comparative negligence rule. (288) Increasingly, the South Dakota Legislature wrestled over the sustainability and longevity of the slight-gross rule, and debated whether to discard it. (289)

III. ANALYSIS

A. CRITIQUE OF THE MODIFIED SLIGHT-GROSS RULE

Judges, scholars, professors, and commentators in and out of South Dakota have expressed trepidation and, on occasion, disgust over the slight-gross system of comparative negligence. (290) As a general critique:

   [T]here is no reason in public policy why the
   ordinarily-prudent-man standard should be varied. Nor is there a
   reason why the court should determine when negligence is "slight"
   as compared with the negligence of the defendant. All these tests
   and variances can be avoided and confusion and uncertainty replaced
   by certainty if the standard of "slight" is replaced by permitting
   recovery against an adverse party guilty of the greater negligence,
   with both parties being judged by the same standard of care. (291)


The renowned tort scholar William Prosser criticized the doctrine as "unworkable," (292) a "fiasco," (293) "the pestilence," (294) "leading] to confusion," (295) "lead[ing] to excessive appeals," (296) and hard to apply consistently. (297) Judge Henry Woods also condemned the slight-gross standard when he explained that it is a "mere modification of the contributory negligence rule" and it does "not go very far in alleviating the injustice" of contributory negligence. (298) Such characterizations do "not inspire much confidence" in the slight-gross system. (299)

B. THE CONCEPTUAL PROBLEM

In order to address the specific problems impacting the slight-gross rule, it is good to be reminded of the aims and moral justifications of tort law or, at least, the purpose and goals of comparative negligence in tort law. (300) Comparative negligence "has a potential impact on almost all areas of tort law." (301) It "requires courts to coordinate liability rules and defenses in ways that transcend the traditional boundaries between various torts." (302) Apportionment disrupts the common law notion of a plaintiffs single, unitary injury and the categorical distinctiveness of individual torts. (303) Essentially, comparative negligence blurs and challenges the conceptual lines of traditional tort law. (304)

However, the fundamental goals of the various comparative negligence doctrines are still to maximize justice, to advance public policy concerns such as economic efficiency, deterring harmful acts, and distributing losses, and to mitigate the harsh contributory negligence doctrine by apportioning fault between the parties of a lawsuit. (305) Comparative negligence doctrines, then, are relatively better or worse depending on how well they promote these policy concerns. (306) Because of the widespread potential impact of comparative negligence on other areas of tort law and its fundamental aims, it is crucial for every jurisdiction, including South Dakota, to formulate a pragmatic, workable, and just rule that maximizes fairness and engenders public trust in the operation of law. (307)

William Prosser wrote "[the slight-gross rule] results in apportionment in only a relatively small fraction of the cases in which it should be made." (308) Prosser's claim is a normative claim. (309) The statement, while it appears simple enough, is a good summation of why the slight-gross system ultimately fails: the scholar's claim essentially provides that the law ought to be different. (310) Normative claims spawn from a recognition of an injustice or an inequity that needs to be (or at least should be) rectified. (311) These types of claims are often pitched in terms of distributive or correlative justice. (312)

Aristotle explained people go to a judge (or, in the modern day, rely on the law) to "restore the equilibrium" or to "restore equality" between the two parties when one of the parties suffers a loss. (313) Aristotle described this proposition as follows:

   As though there were a line divided into two unequal parts, [the
   judge] takes away the amount by which the larger part is greater
   than half the line and adds it to the smaller. Only when the whole
   has been divided into two equal parts can a man say that he has
   what is properly his, i.e., when he has taken an equal part. The
   equal is median between the greater and the smaller according to
   arithmetical proportion. (314)


His supposition is particularly poignant and applicable to the law of comparative negligence because it deals directly with apportionment of fault and damages. (315) Thus, when Prosser opines that apportionment occurs in only a "relatively small fraction of the cases in which it should be made," (316) he is ultimately arguing that the slight-gross rule is unjust and that it does not allow judges to rectify inequities and restore equilibrium. (317)

Not only does the slight-gross rule fail to maximize justice, it does not promote economic efficiency to the degree that other comparative negligence schemes do. (318) In their in-depth study of comparative negligence, Professors Cooter and Ulen opined:

   Thus, we conclude that comparative negligence is more efficient
   than the alternative rules when the parties are symmetrically
   situated.... The general conclusion of that extension is that
   the parties are treated more symmetrically with respect to
   liability under the pure form of comparative negligence than under
   the modified form, and they are treated more symmetrically under
   the modified form than under the slight-gross rule. Therefore,
   under conditions favoring symmetrical treatment, the pure form is
   preferable. (319)


Prior to the work of Cooter and Ulen, many tort scholars argued contributory negligence was a more economically efficient system because it forces one party (the plaintiff) to take precaution. (320) Whether comparative negligence or contributory negligence is more economically efficient is beyond the scope of this article. (321) This article is merely commenting on the fact that the slight-gross rule is not and has not been held to be the most efficient species of comparative negligence law. (322) In fact, according to Cooter and Ulen, it is the least efficient form of comparative negligence. (323) Thus, not only does it do a poor job of maximizing justice, it fails to promote economic efficiency. (324)

Lastly, comparative negligence in the United States originated as a method to negate the harsh effects of contributory negligence. (325) Juries, employing their own notions of fairness and justice, would routinely disregard contributory negligence instructions and give plaintiffs what they thought was a fair award. (326) To counteract this, courts developed comparative negligence rules (slight-gross being the first) that allowed for more equitable results. (327) However, as has been discussed at length, the slight-gross rule buckled under its own weight and failed to produce the results for which it was designed. (328) It is clear that every jurisdiction in the United States has abandoned, abrogated, eliminated, declined to follow, or superseded the slight-gross rule for general tort claims, except South Dakota. (329) Not only that, the South Dakota Supreme Court expressly held the State's comparative negligence statute has not completely abolished the contributory negligence doctrine; the statute merely modifies the common law rule. (330) Thus, the South Dakota statute and its interpretation undermine the original purpose for which courts and legislatures promulgated comparative negligence rules in the first place, abandonment of the contributory negligence doctrine. (331)

C. THE PRIMORDIAL PROBLEM

As discussed above, comparative negligence traces its ancestry to the common law doctrine of contributory negligence. (332) Because contributory negligence led to harsh and unfair results, courts experimented with different exceptions to the rule and, eventually, dislodged the doctrine in favor of the first comparative negligence rule, the slight-gross rule. (333) The original formulation of the slight-gross rule employed degrees of negligence; degrees of negligence originated and developed in Roman law and English common law with the law of bailments. (334) In essence, courts in the 1800s imported the categories of "slight," "ordinary," and "gross" negligence from bailments into ordinary negligence law to mitigate the harsh applications of the contributory negligence doctrine. (335) Therefore, the origin of the slight-gross rule is, in part, dependent on the recognition of degrees of negligence from bailment law. (336)

In the 1934 case Wittstruck v. Lee, the South Dakota Supreme Court specifically considered and rejected degrees of negligence. (337) The court later affirmed this in Friese when the court explicitly held "[t]his jurisdiction does not recognize degrees of negligence per se." (338) In essence, the court pulled the conceptual and proverbial rug out from under its feet; the slight-gross rule depends on the distinctions between slight, ordinary, and gross negligence. (339) Since South Dakota does not recognize degrees of negligence and the slight-gross rule is conceptually rooted in that tri-part system, the court effectively doomed the doctrine from its inception. (340) The legislature introduced a system of comparative negligence for which South Dakota did not have the proper infrastructure. (341) The court acknowledged this when it indicated:

   This jurisdiction does not recognize degrees of negligence per se.
   ... The statute imposes a standard of ordinary care.... Thus
   the concept of "slight negligence" frequently described or defined
   as want of extraordinary care ... is without place in our law of
   negligence. Hence we have concluded that the legislature made use
   of the words "slight negligence" to describe a quantum of want of
   such ordinary care as a reasonable man would exercise under the
   circumstances. (342)


The court backed itself into a conceptual pigeonhole because precedent blockaded recognition of degrees of negligence and the legislature enacted a comparative negligence system dependent on those very degrees. (343) Thus, since its primordial inception in South Dakota, the slight-gross rule and its progeny have lacked proper foundation. (344) In an effort to save the constitutionality of the statute, the court constructed a definition of "slight" that quickly created both practical and theoretical problems. (345)

D. THE DEFINITIONAL PROBLEM

The distinguished tort law scholar Victor E. Schwartz (346) identifies several other major problems with the slight-gross negligence scheme, including: (1) definitional hardship, (2) numerous, burdensome appeals, and (3) the existence of better comparative negligence rules. (347) The first problem, and probably the most troubling, is the inherent "definitional conundrum" of the term "slight." (348) The South Dakota Supreme Court, in laying the bedrock and eventual foundation of the slight-gross rule in the State, authored in the landmark opinion of Friese, "The uncertainty in this legislative concept [the definition of slight] is intrinsic." (349) The definition of intrinsic is "belonging to the essential nature or constitution of a thing." (350) Thus, from its genesis in South Dakota, the court pronounced the definition of slight to be uncertain as to its essential nature and constitution. (351)

The South Dakota Supreme Court attempted to provide a definition of "slight" that was not dependent on degrees of negligence. (352) The court settled on "a quantum of want of such ordinary care as a reasonable man would exercise under the circumstances" bolstered by the common definition of slight--"small in kind or amount; scanty; meager." (353) Quantum merely means "quantity or amount," which does not give any precise guideline. (354)

When the legislature amended the statute in 1964, it clarified that the fact finder directly compares the plaintiffs and defendant's negligence to one another. (355) It also dropped the requirement that the defendant's negligence had to be gross. (356) Once it did, the definition of slight from Friese became less important because the plaintiffs and defendant's negligence were to be compared to one another directly. (357) In making this change, however, the legislature created more problems than it solved because it inadvertently created a two-step analysis in which the plaintiffs and defendant's negligence first had to be compared to an ordinary person (objective standard). (358) In the second step, the trier of fact compares the plaintiffs and defendant's negligence directly to one another and determines whether the plaintiffs negligence was slight compared to the defendant's. (359) The legislature forced the supreme court to modify the definition of "slight" because slight negligence no longer bore on the objective standard (first prong of the test) but the subjective and relative standard (second prong of the test). (360) The court changed the definition, holding slight to be a "relative and variable term which [defies] precise definition and prohibits an arbitrary mathematical ratio limitation." (361) In recasting the term, the court openly admitted it cannot have a "precise definition" but rather the definition is "relative and variable" depending on the individual "facts and circumstances in each case." (362)

The inability of the South Dakota Supreme Court to solidify a precise and workable definition of "slight" is the central weakness of the modified slight-gross rule. (363) Indeed, this was the primary reason why other jurisdictions that experimented with the doctrine eventually dropped this form of comparative negligence. (364) Case law in South Dakota and Nebraska indicates courts cannot consistently apply the doctrine, holding in some cases certain behavior in one instance constitutes slight negligence but not in others. (365) The law does not guide or deter any particular conduct or guarantee that a violation of a safety statute will be negligence per se. (366) The definition is, to put it mildly, "unworkable," (367) a "fiasco," (368) "the pestilence," (369) "leading] to confusion," (370) and hard to apply consistently. (371)

E. THE EXCESSIVE APPEALS PROBLEM

The second major problem the torts' scholar Victor Schwartz recognizes is part and parcel with the first problem. (372) The inherent "definitional conundrum" of the term "slight" leads to numerous and burdensome appeals. (373) South Dakota courts are frequently called upon to determine "whether particular conduct of the plaintiff is, under the circumstances, more than 'slight' negligence." (374) Typically, it is up to the jury to compare the negligence of the parties and determine whether the plaintiffs negligence bars recovery. (375) However, the court carved out an exception to this rule and held "[w]here the evidence shows beyond reasonable dispute that the negligence of [the] plaintiff is more than slight, the trial court must then instruct the jury to return a verdict for the defendant." (376)

A review of South Dakota case law highlights this tension. (377) For example, the South Dakota Supreme Court held a violation of a safety statute is contributory negligence per se as a matter of law (378) but, under different circumstances, such violation is not contributory negligence per se. (379) As in another example, Wood v. City of Crooks, the jury found in favor of the plaintiff and allowed him to recover a damage award when it calculated his negligence at thirty percent in comparison to the other defendants. (380) The South Dakota Supreme Court reversed the plaintiffs verdict and held thirty percent contributory negligence is more than slight as a matter of law. (381) This seems to defy the court's own mandate because the jury (a group of "reasonable minds") felt that thirty percent negligence was not "more than slight" under the circumstances and allowed the plaintiff to recover. (382) While it was within the power of the court to determine what constitutes more than slight as a matter of law, the case highlights the practical problems of applying the rule and employing a workable definition of "slight." (383) It is precisely these types of appeals that substantiate the anxieties of tort scholars and lend credence to their objections over the slight-gross comparative negligence rule and its progeny. (384)

F. THE BETTER RULE PROBLEM

The third and final problem the torts' scholar Victor Schwartz identifies is there are "better methods of modifying the contributory negligence defense." (385) William Prosser opined:

   If [this] writer were to attempt to draw [a comparative negligence]
   act for a legislature, he would avoid "slight" and "gross"
   negligence, and the "lesser" negligence of the plaintiff, as the
   pestilence. They do not strike at the root of the difficulty; they
   leave the damages undivided in too many cases where the division
   should be made; and they lead inevitably to many
   difficult appeals abounding in confusion. (386)


It is not as though "better" or "more effective" rules do not exist; to the contrary, there are several possibilities that would eliminate the conceptual and practical problems of the modified slight-gross rule. (387)

G. THE BEST FIT FOR SOUTH DAKOTA

Scholars and commentators debate what the best form of comparative negligence is, but there does appear to be two frontrunners. (388) The less than (49/51) rule does not appear to rectify completely the problems associated with the slight-gross rule, namely the high number of appeals and general infeasibility. (389) Of the better two options, the pure comparative negligence rule appears to be the most efficient (390) as it allows the trier of fact to apportion damages not subject to any limitation. (391) On the other hand, a plurality of legislatures in the United States have enacted the less than or equal to (50/50) rule, which prohibits a plaintiff from recovering when she was more negligent than the defendant(s). (392) Both systems have their relative strengths and, as a matter of policy, it is for the South Dakota Legislature to decide which should be enacted. (393)

H. INSURANCE RATES

It should also be noted one of the greatest (if not the greatest) obstacle to legislative action is and has been speculation by the insurance industry that rates, costs, and litigation will increase. (394) While there is no consensus on how exactly comparative negligence impacts insurance rates, (395) most of the scholarly research and statistics appear to support the conclusion that rates remain relatively unaffected. (396) North Carolina's Legislative Research Commission performed an extensive analysis on how adoption of comparative negligence in that State would impact liability insurance costs. (397) After receiving responses from twenty-four different states' insurance commissions, the North Carolina Legislative Research Commission compiled the information and determined as follows:

   [T]he Committee was unable to find any strong evidence to support
   the contention that insurance rates would increase substantially as
   the result of adoption of a comparative negligence system.... Thus,
   there is still no hard evidence to support a widely held belief
   that the introduction and application of comparative negligence
   produces an increase in liability insurance costs. (398)


If comparative negligence did cause insurance rates to go up, it would be unlikely that so many states would adopt comparative negligence statutes. (399) It has also been argued when a plaintiff is unable to recover from a defendant (or a defendant's insurance company), the costs are "ultimately borne by someone else," e.g., the plaintiff, plaintiff's family or friends, taxpayers, governments, or hospitals. (400) The purpose of insurance, especially liability coverage, is to transfer or distribute risk across a pool of people; the industry is designed to absorb the types of accidents and risk associated with comparative negligence laws. (401)

The Arkansas Bar found that parties to a lawsuit settled cases just as frequently under a comparative negligence law as contributory negligence law and that insurance rates did not increase under comparative negligence statutes. (402) Tennessee is another example. (403) Tennessee operated under a species of the slight-gross system prior to adopting the less than (49/51) rule. (404) The Tennessee Senate formed a special committee to study tort reform and its effects on insurance rates. (405) The committee, along with the Governor's Commission of Tennessee, recommended that Tennessee abolish its species of slight-gross and enact a form of modified comparative negligence (406) Professor Carol Mutter of the University of Tennessee College of Law conducted further research on the peculiarities of Tennessee's situation. (407) She opined that Tennessee should adopt a modified comparative negligence scheme. (408) This has special import for South Dakota because like Tennessee, South Dakota is the last State with its own, peculiar form of comparative negligence that applies to all tort actions (409) Additionally, the rule used in Tennessee was a distant relative of the slight-gross scheme. (410) Tennessee finally abandoned its "remote contributory cause" doctrine in 1992. (411)

It is also likely that if South Dakota adopted a more workable standard, it would cut down on costs elsewhere. (412) The slight-gross rule has led to numerous and burdensome appeals because courts are often called upon to decide whether the plaintiffs conduct is more than slight or less than slight as a matter of law. (413) A more workable and clear-cut rule would likely reduce the number of appeals and encourage settlement of claims. (414) In short, the South Dakota Legislature should not base its policy decision on a misnomer and unsubstantiated supposition that insurance rates will increase if it changes the comparative negligence law. (415) The facts and evidence simply do not support that conclusion. (416) On point, the Supreme Court of Kentucky provided that "[t]o those who speculate that comparative negligence will cost more money or cause more litigation, we say there are no good economies in an unjust law." (417)

IV. CONCLUSION

A review of the history of the slight-gross rule and South Dakota law demonstrates the copious problems, failures, and difficulties associated with this doctrine. Even though the birth of modern comparative negligence law may be traced to judicial and legislative experiments with slight-gross, other jurisdictions realized the unworkability of the rule and abolished it. The only other state, Nebraska, to adhere to the rule for a meaningful amount of time in a form comparable to South Dakota's rule abandoned it in 1992 and left the Rushmore State stranded alone on the tumultuous, tortious sea. An examination of South Dakota case and legislative history reveals that neither the South Dakota Supreme Court nor the Legislature has provided an adequate definition of "slight" that is able to withstand the vast and varying onslaught of litigation. The definition is unworkable. Because the State's slight-gross rule faces conceptual problems, primordial problems, definitional problems, appellate problems, criticism from notable tort scholars, judges, and commentators, and must compete with other, more tenable rules, reasons to cling to the slight-gross rule dwindle. Perhaps the single greatest obstacle to abolishing slight-gross comparative negligence and improving South Dakota law is the lack of political will to make the change caused by misinformation related to the effect of the change on the insurance industry. There is no conclusive data proving insurance rates will increase with a change to the comparative negligence law and, in fact, scholarly work tends to show that insurance rates will remain undisturbed. Decades of litigious waves pounding, and occasionally engulfing, the rickety and ailing slight-gross ship betrayed the flaws in her design, the poor craftsmanship of her original shipwrights, and the pressing need to fashion a seaworthy vessel. The time has come to kick our addiction to a bad comparative negligence law and create a better rule.

(1.) Victor E. Schwartz, Comparative Negligence [section] 1.01, at 2 (5th ed. 2010) (citing Ernest A. Turk, Comparative Negligence on the March, 28 CHI.-KENT L. REV. 189, 304 (1950)).

(2.) Schwartz, supra note 1, at [section] 1.01; at 2; Turk, supra note 1, at 304 (1950).

(3.) See generally William L. Prosser, Comparative Negligence, 51 Mich. L. REV. 465 (1953) (discussing the development of the comparative negligence doctrine).

(4.) See infra Part II.C.

(5.) See infra Part II.C.0-c. The South Dakota Legislature amended the statute twice, once in 1964 and again in 1998. See 1964 S.D. Sess. Laws 182; 1998 Sess. Laws 179-80.

(6.) See infra Parts II.A. 1-3.

(7.) See infra Parts II.A. 1-3.

(8.) See infra Parts II.A. 1-3.

(9.) See Schwartz, supra note 1, at [section] 1.02, at 5-10.

(10.) See id at [section] 2.01(b), at 33-34.

(11.) See id. at [section] 201(b)(1)-(b)(3), at 33-34. Within the category of modified comparative negligence, there are three different types: the slight-gross rule, the less than ("49/51") rule, and the less than or equal to ("50/50") rule. Id. at [section] 2.01 (b)(2)-(b)(3), at 33-34. There also exists a fourth version of modified comparative negligence. Id. at [section] 2.01(b)(1), at 33 It is the "equal division rule." Id. The equal division rule, which divides damages equally between the parties without fault apportionment, disseminates from admiralty and maritime law. See id. at [section] 3.03(a), at 68-70. For more on the equal division rule, see The Schooner Catharine v. Dickinson, 58 U.S. 170, 175 (1854).

(12.) Id. at [section] 2.01(a), at 32-33.

(13.) See infra Part II.B.

(14.) See infra Part II.B. Under the contributory negligence rule, a plaintiff's negligence acted as a complete bar to her recovery even if the defendant was plainly negligent or the plaintiffs negligence was only slight in comparison. Butterfield v. Forrester, 103 Eng. Rep. 926, 927 (K.B. 1809). See also Galena & Chi. Union .R.R. Co. v. Jacobs, 20 Ill. 478, 496-97 (Ill. 1858). The slight-gross rule developed in response to the harsh contributory negligence rule and was the first instantiation of a comparative negligence scheme utilized in the United States. See Galena, 20 111. at 496-97. Although no states adopted comparative negligence up until this point, comparative negligence (or at least apportionment of damages) had been used in admiralty and maritime law for hundreds of years. See Dickinson, 58 U.S. at 177-78; Paul T. Hayden, Butterfield Rides Again: Plaintiff's Negligence as Superseding or Sole Proximate Cause in Systems of Pure Comparative Responsibility, 33 Loy. L.A. L. Rev. 887, 890 n. 16 (2000).

(15.) Prosser, supra note 3, at 484-89.

(16.) See infra Part II.C.

(17.) See infra Part III.

(18.) See infra Part III.A.

(19.) See infra Part III.0. The thrust of the conceptual problem, as will be discussed, is that the slight-gross rule does not comport with notions of fairness, justice, or morality. See generally Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. Rev. 449 (1992) (discussing tort law and the underlying notions of fairness, justice, virtue, and morality); William L. Prosser, Law of Torts (4th ed. 1977) (discussing tort law); Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L.J. 1055 (1972) (discussing the implications and limitations of strict liability); Jules L. Coleman, Tort Law and the Demands of Corrective Justice, 67 IND. L.J. 349 (1992) (discussing correlative justice and annulment theory); Aaron Rappaport, The Logic of Legal Theory: Reflections on the Purpose and Methodology of Jurisprudence, 73 MISS. L.J. 559 (2004) (discussing the purposes and methods of legal theory); Robert D. Cooter & Thomas S. Ulen, An Economic Case for Comparative Negligence, 61 N.Y.U. L. REV. 1067 (1986) (analyzing the economic advantages and disadvantages of varying comparative negligence schemes); John C. Moorehouse, Andrew P. Morriss, & Robert M. Whaples, Law & Economics and Tort Law: A Survey of Scholarly Opinion, 62 Alb. L. Rev. 667 (1998) (discussing which comparative negligence laws are more economically efficient); ARISTOTLE, Nicomachean ETHICS (Martin Ostwald trans., 1962) (analyzing virtue, morality, eudaimonia, and the contents of a good life); Restatement (Third) of Torts: Apportionment Of Liability [section] 1 cmt. a (2000) (promulgating model rules in the area of tort law).

(20.) See infra Part III.C.

(21.) See infra Part III.D.

(22.) See infra Part III.E.

(23.) See infra Part III.F.

(24.) See infra Part III.G.

(25.) Schwartz, supra note 1, at [section][section] 2.04 and 22.01(e), at 55-56, 478-79 (citations omitted). See also Cornelius J. Peck, Panel on Comparative Negligence and Automobile Liability Insurance, 58 Mich. L. Rev. 689, 726-28 (1960); Steven Gardner, Contributory Negligence, Comparative Negligence, and Stare Decisis in North Carolina, 18 Campbell L. Rev. 1, 54-57 (1996).

(26.) See infra Part III.G.

(27.) See infra Parts II.A-C.

(28.) See infra Part II.B.1.

(29.) See infra Part II.B.2.

(30.) See infra Part II.B.3.

(31.) See infra Part II.B.4.

(32.) See infra Part II.C.

(33.) SCHWARTZ, supra note 1, at [section] 1.02, at 5.

(34.) Id. at [section] 2.01(b), at 33.

(35.) Id. at [section] 2.01(a), at 32-33.

(36.) Id. at [section] 2.01(b)(2), at 33.

(37.) Id. at [section] 2.01(b)(3), at 33-34.

(38.) Id.

(39.) See infra Parts II.A. 1-3.

(40.) See infra Part III.G.

(41.) Schwartz, supra note 1, at [section] 2.01(b)(3), at 33-34.

(42.) Id.

(43.) Id.

(44.) Id.

(45.) Neb. Rev. Stat. [section] 25-21, 185.09 (1992).

(46.) Ariz. Rev. Stat. [section] 12-2505 (1984); Ark. Code Ann. [section] 16-64-122 (1991); Colo. Rev. Stat. [section] 13-21-111 (1986); Christian v. Macon Ry. & Light Co., 47 S.E. 923, 923 (Ga. 1904); Idaho Code Ann. [section] 6-801 (1987); Kan. Stat. Ann. [section] 60-258a(a) (2010); Me. Rev. Stat. Ann. tit. 14, [section] 156 (1999); Neb. Rev. Stat. [section] 25-21,185.09 (1992); N.D. Cent. Code [section] 32-03.2-02 (1993); McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992); Utah Code Ann. [section] 78B-5-818 (2008); Bradley v. Appalachian Power Co., 256 S.E.2d 879, 885 (W. Va. 1979).

(47.) See Christopher J. Robinette, The Prosser Notebook: Classroom as Biography and Intellectual History, 2010 U. Ill. L. Rev. 577, 579 (2010). William Lloyd Prosser is arguably the greatest tort law scholar to have ever lived. See id. "Rarely in the history of American legal education has one author's name been so clearly identified with his subject as the name of William L. Prosser is with the law of torts." Id. (quoting Craig Joyce, Keepers of the Flame: Prosser and Keeton on the Law of Torts and the Prosser Legacy, 39 Vand. L. Rev. 851, 852 (1986)). Prosser has a long list of accomplishments, but three in particular stand out. Id. He authored one of the most authoritative texts on tort law in 1941, Prosser on Torts. Id. Prosser was also the reporter for the Restatement (Second) of Torts, becoming one of the most influential and authoritative texts on tort law. Id. Finally, he penned a textbook that still, to this day, is widely regarded as one of the best text books on tort law even after his death. Id.

(48.) Prosser, supra note 3, at 494.

(49.) Schwartz, supra note 1, at [section] 2.01(b)(3), at 33-34.

(50.) Id.

(51.) Id.

(52.) Id.

(53.) Conn. Gen. Stat. Ann. [section] 52-572h(b) (1999); DEL. CODE ANN. tit. 10 [section] 8132 (1995); Haw. Rev. Stat. [section] 663-31 (1984); 735 Ill. Comp. Stat. Ann. 5/2-1107.1 and 5/2-1116 (2003); Ind. Code Ann. [section] 34-51-2-6 (1998); Iowa Code Ann. [section] 668.3 (1997); Mass. Ann. Laws ch. 231, [section] 85 (1973); Minn. Stat. Ann. [section] 604.01(1) (1990); Mont. Code Ann. [section] 27-1-702 (1997); Nev. Rev. Stat. Ann. [section] 41.141 (1989); N.H. Rev. Stat. Ann. [section] 507:7-d (1986); N.J. Stat. Ann. [section] 2A:15-5.1 (1982); Ohio Rev. Cod Ann. [section] 2315.33 (2003); Okla. Stat. Ann. tit. 23, [section] 13 (1979); OR. Rev. Stat. [section] 31.600; 42 Pa. Cons. Stat. Ann. [section] 7102 (2011); Estate of Nelson v. Concrete Supply Co., 399 S.E.2d 783, 784 (S.C. 1991); Tex. Civ. Prac. & Rem. Code Ann. [section] 33.001a (1995); VT. Stat. Ann. tit. 12, [section] 1036 (1979); Wis. Stat. Ann. [section] 895.045 (2011); Wyo. Stat. Ann. [section] 1-1-109 (1994).

(54.) Schwartz, supra note 1, at [section] 2.01(a), at 32-33.

(55.) Id.

(56.) Id.

(57.) Id.

(58.) Alaska Stat. [section] 09.17.060 (1986); Li v. Yellow Cab Co., 532 P.2d 1226, 1232 (1975); Fla. Stat. Ann. [section] 768.81(2) (2011); Hilen v. Hays, 673 S.W.2d 713, 720 (Ky. 1984); La. Civ. Code Ann. art. 2323(1996); Mich. Comp. Laws [section] 600.2957 (1996); Miss. Code Ann. [section] 11-7-15 (1972); Gustafson v. Benda, 661 S.W.2d 11, 15-16 (Mo. 1983); Scott v. Rizzo, 634 P.2d 1234, 1239 (N.M. 1981); N.Y.C.P.L.R. [section] 1411 (McKinney 1975); R.I. Gen. Laws [section] 9-20-4 (1972); Wash. Rev. Code Ann. [section] 4.22.005 (1981).

(59.) 45 U.S.C. [section] 53 (1908).

(60.) P.R. Laws Ann. tit. 31, [section] 5141 (1956).

(61.) Schwartz, supra note 1, at [section] 1.04(a), at 13; see also 46 U.S.C. [section] 30104(2006).

(62.) Gary T. Schwartz, Contributory and Comparative Negligence: A Reappraisal, 87 Yale L. J. 697, 697-98 (1978); Prosser, supra note 21, at [section] 67, at 433-34. While the modern ideas of comparative negligence are very much a response to the common doctrine of contributory negligence, the original idea of "comparative fault" is much older. Chalmers Mole & Lyman P. Wilson, A Study Of Comparative Negligence, 17 CORNELL L. Rev. 333, 334 (1932).

(63.) See Butterfield v. Forrester, 103 Eng. Rep. 926 (K.B. 1809) (promulgating the contributory negligence rule).

(64.) Id.

(65.) Id.

(66.) Id. For an in-depth discussion of the case, see Hayden, supra note 14, at 887. Lord Ellenborough held, "One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." Id. at 887-888 (quoting Butterfield, 103 Eng. Rep. at 927).

(67.) Butterfield, 103 Eng. Rep. 926.

(68.) See Washburn v Tracy, 2 D Chip 128, 136 (Vt. 1824); Smith v. Smith, 19 Mass. 621, 666 (1824).

(69.) See Kevin J. Grehan, Comparative Negligence, 81 Colum. L. Rev. 1668, 1669 (1981). See also Schwartz, supra note 1, at [section] 1.03, at 10.

(70.) Wittstruck v. Lee, 252 N.W 874, 876 (S.D. 1934); Iverson v. Knorr, 298 N.W. 28, 30 (S.D. 1941).

(71.) Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 61 Colum. L. Rev. 50, 58 (1967). Contributory negligence, in effect, negated a jury's ability to award a verdict against a large company if the court determined that the plaintiff contributed to the accident. Schwartz, supra note 1, at [section] 1.02(d) (1), at 8-9. Contributory negligence is a complete bar to a plaintiffs recovery and, as a matter of law, the plaintiff could not recover. Butterfield, 103 Eng. Rep. 926 (K.B. 1809).

(72.) Prosser, supra note 3, at 468.

(73.) Id. at 469-75.

(74.) See Schwartz, supra note 1, at [section] 1.02(c), at 6-8. See also PROSSER, supra note 21, at 416-57.

(75.) Prosser, supra note 3, at 471-72. The "last clear chance" exception, which is also known as the "jackass" doctrine because of the case that bore it, allowed a plaintiff to recover if the defendant had the "last clear chance" to avoid the harm caused. Id.

(76.) 152 Eng. Rep. 588 (1842) (promulgating the last clear chance exception). This was the famous "donkey case" in which the plaintiff left his donkey fettered next to the side of the road. See id. The defendant, while driving his wagon, smashed into the donkey, killing it. Id. Plaintiffs negligence contributed to the accident, but the King's Bench allowed plaintiff to recover on the basis of the newly formed doctrine of last clear chance. Id. For a good discussion of this case and its impact on contributory negligence law, see generally William Schofield, Davies v. Mann: Theory on Contributory Negligence, 3 Harv. L. Rev. 263 (1890) (discussing the importance of Davies v. Mann); Malcolm M. MacIntyre, The Rationale of Last Clear Chance, 53 Harv. L. Rev. 1225 (1940) (discussing the doctrine of last clear chance); Restatement (Second) of Torts [section][section] 479-80 (1965).

(77.) Good Low v. United States, 428 F.3d 1126, 1129-30 (8th Cir. 2005) (quoting in part Nielson v. Richman, 299 N.W. 74, 74 (S.D. 1941)).

(78.) Prosser, supra note 3, at 471.

(79.) Schwartz, supra note 1, at [section] 7.02(a), at 168. As of 2010, only four states retained the last clear chance doctrine. See Fouts v. Builders Transp., Inc., 474 S.E.2d 746, 751-52 (Ga. Ct. App. 1996) (Georgia); Witaker v. Burlington N., Inc., 352 N.W.2d 589, 594 (Neb. 1984) (Nebraska); Good Low, 428 F.3d at 1129-30; Vlach v. Wyman, 104 N.W.2d 817, 819 (S.D. 1960) (South Dakota), Hanson v. N.H. Pre-Mix Concrete, Inc., 268 A.2d 841, 843 (N.H. 1970) (New Hampshire). The last clear chance doctrine has been abolished in Michigan. Callesen v. Grand Trunk Western R.R. Co., 437 N.W.2d 372, 377 (Mich. Ct. App. 1989).

(80.) De Noma v. Sioux Falls Traction Sys., 162 N.W. 746, 747 (S.D. 1917); Wolff v. Stenger, 239 N.W. 181, 183-84 (S.D. 1931); Wittstruck v. Lee, 252 N.W 874, 877 (S.D. 1934); Vlach, 104 N.W.2d at 819; Good Low, 428 F.3d at 1129-30 (2005).

(81.) Stone v. Hinsvark, 57 N.W.2d 669, 673 (S.D. 1953); Audiss v. Peter Kiewit Sons Co., 190 F.2d 238, 241-42 (8th Cir. 1951); Knapp v. Styer, 280 F.2d 384, 389 (8th Cir. 1960). Under Knapp the 8th Circuit Court of Appeals held that

   [i]n summary, it may be said that the statute is limited in its
   application to cases in which the evidence warrants the inference
   that plaintiff was guilty of no more than slight contributory
   negligence and the former doctrine that contributory negligence on
   the part of a plaintiff will bar his recovery is not entirely
   abrogated. As so often true, each case must be determined upon its
   own particular facts and there is no exact rule or standard that
   can be fixed in applying the statute.


Knapp, 280 F.2d at 389. Thus, the 8th Circuit's interpretation left open the possibility of applying the common law contributory negligence rule to future cases. See id. Under Stone, the South Dakota Supreme Court held, "the Act modifies, but does not abolish, the law of contributory negligence." Stone, 57 N.W.2d at 673.

(82.) See Galena & Chi. Union R.R. Co. v. Jacobs, 20 Ill. 478 (Ill. 1858). However, this was not the first instance in Anglo-American jurisprudence to develop a scheme for what we now call "comparative negligence." Hayden, supra note 14, at 890 n.16. To the contrary, admiralty and maritime law had long utilized a system of apportioning fault dating back to the fourteenth century. Id. (citing Henry Woods, Comparative Negligence [section] 1:10 at 19 (1978); Turk, supra note 1, at 223).

(83.) Jacobs, 20 Ill. at 497.

(84.) Id.

(85.) Id. at 478-80.

(86.) Id.

(87.) Id.

(88.) Id.

(89.) Id. at 478.

(90.) Id. at 482-83.

(91.) Id. at 497.

(92.) Id.

(93.) Schwartz, supra note 1, at [section] 3.04(a), at 73.

(94.) See Id.; See Jacobs, 20 Ill. at 497.

(95.) Prosser, supra note 3, at 484.

(96.) Sheldon D. Elliott, Degrees of Negligence, 6 So. CAL. L. Rev. 91, 95-96 (1932).

(97.) Id.; Prosser, supra note 3, at 484 (citing Coggs v. Bernard, 2 Ld. Raym. 909, 92 Eng. Rep. 107 (1704)).

(98.) Elliot, supra note 96, at 95.

(99.) Id.

(100.) Prosser, supra note 3, at 485 (citing St. Louis A. & T.H. R. Co. v. Todd, 36 111. 409 (1865); Chicago, B. & Q. R. Co. v. Payne, 59 111. 534 (1871); Illinois Cent. R. Co. v. Cragin, 71 111. 177 (1873); Illinois v. Hall, 72 111. 222 (1874); Chicago & A. R. Co. v. Hammer, 72 111. 347 (1874); Illinois Cent. R. Co. v. Goddard, 72 111. 567 (1874); Schmidt v. Chicago & N.W. R. Co., 83 111. 405 (1876); Illinois Cent. R. Co. v. Hammer, 85 111. 526 (1877); Wabash R. Co. v. Henks, 91 111. 406 (1879)).

(101.) Prosser, supra note 3, at 485. In this particular quote, Prosser notes numerous Illinois Supreme Court Cases and cites an excellent law review article on point. See Wex S. Malone, The Formative Era of Contributory Negligence, 41 Ill. L. Rev. 151 (1946) (discussing the origins and spread of contributory negligence).

(102.) Lake Shore & M.S.R. Co. v. Hession, 150 Ill. 546, 556 (Ill. 1894). The Supreme Court of Illinois notes, however:

   we have repeatedly held, in effect, in the later decisions,
   beginning with Calumet Iron & Steel Co. v. Martin, 3 N.E. 456, 115
   Ill. 358 (1885) that the doctrine of comparative negligence as
   announced in the earlier cases was no longer the law of this state;
   and it is to be no longer regarded as correct rule of law,
   applicable in cases of this character.


Id.

(103.) Prosser, supra note 3, at 485.

(104.) Id. (citing Sawyer v. Sauer, 10 Kan. 466 (1872); Pac. R.R. Co. v. Houts, 12 Kan. 328 (1873); Union Pac. R.R. Co. v. Henry, 14 P. 1 (Kan. 1883); Wichita & W. R. Co. v. Davis, 16 P. 78 (Kan. 1887); Atchison, Topeka & Santa Fe R.R. Co. v. Morgan, 1 P. 298 (Kan. 1883); Mo. Pac. Ry. Co. v. Walters, 96 P. 346 (Kan. 1908); Atchison, Topeka. & Santa Fe R.R. Co. v. Henry, 45 P. 576 (Kan. 1896); Sayeg v. Kan. City Gas & Elec. Co., 131 P.2d 648 (Kan. 1942)).

(105.) Prosser, supra note 3, at 485 (citing Bequette v. People's Transp. Co., 2 Or. 200 (1867); Holstine v. Or. & Cal. R.R. Co., 8 Or. 163 (1879)). In Hamerlynck v. Banfield, "without reference to the earlier cases [cited], the court stated the common law contributory negligence rule." Id. at 485, n.122. See also Hamerlynck v. Banfield, 59 P. 712 (Or. 1900). The rule was followed until 1971 when Oregon adopted the less than or equal to (50/50) rule. OR. REV. STAT. [section] 18.470 (2002).

(106.) Prosser, supra note 3, at 485. Discussing want of ordinary care, Prosser notes,

   In Stucke v. Milwaukee & Miss. R. Co., 9 Wis. 202 (1859); Dreher v.
   Town of Fitchburg, 22 Wis. 643 (1868); Hammond v. Town of Mukwa, 40
   Wis. 35 (1876); Griffin v. Town of Willow, 43 Wis. 509 (1878); and
   Ditberner v. Chicago, M. & St. P. R. Co., 47 Wis. 138, 2 N.W. 69
   (1879), it was said that slight negligence, defined as want of
   extraordinary care, would not bar the plaintiffs recovery. But in
   Potter v. Chicago & N.W. R. Co., 21 Wis. 377 (1867), and Cunningham
   v. Lyness, 22 Wis. 236 (1867), it was held that any way of ordinary
   care, however slight, would be a bar; and in Bolin v. Chicago, St.
   P. M. & O. R. Co., 108 Wis. 333, 84 N.W. 446 (1900), the court,
   after reviewing the cases, rejected the whole idea of comparative
   negligence.


Id. at 485, n.123.

(107.) Prosser, supra note 3, at 485 (citing Whirley v. Whiteman, 38 Term. 610, 623 (1858); E. Tenn., Va. & Ga. R.R. Co. v. Fain, 80 Tenn. 35, 40 (1883)). Prosser states, "[I]n East Term. V. & G. R. Co., v. Hull, 88 Tenn. 33, 12 S.W. 419 (1889), the court expressly repudiated the idea of comparative negligence, and explained that it had been talking about 'remote' negligence and proximate cause." Id. at 485, n.124. For a good review of how comparative negligence law grew and changed in Tennessee, see generally Carol A. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn. L. Rev. 199 (1990).

(108.) Prosser, supra note 3, at 485.

(109.) Id.

(110.) Id. at 486.

(111.) Id. (citing Ohio Gen. Code Ann. [section] 9018; Balt. & Ohio R.R. Co. v. McTeer, 9 N.E.2d 627 (Ohio 1936); Detroit & Toledo Shore Line R.R. Co. v. Seigel, 153 N.E. 870 (Ohio Ct. App. 1926); Ross v. Hocking Valley Ry. Co., 178 N.E. 852 (Ohio Ct. App. 1931); Norfolk & W. Ry. Co. v. Riggs, 98 F.2d 612 (6th Cir. 1938); Erie R.R. Co. v. White 187 F. 556 (6th Cir. 1911)).

(112.) Id. (citing Alaska Comp. Laws. Ann. [section] 43-2-52 (1949) (currently codified as Alaska Stat. [section]23.25.020(1962)).

(113.) Id. (citing Cal. Lab. Code [section] 2801 (1937), which applied in all employment actions).

(114.) Id.

(115.) Id.

(116.) Id. at 487 (citing 1913 Neb. Laws 311-12).

(117.) 1941 S.D. Sess. Laws 184.

(118.) See 1913 Neb. Laws 311-12; 1941 S.D. Sess. Laws 184.

(119.) Prosser, supra note 3, at 486.

(120.) 1913 Neb. Laws 311-12. While Nebraska was the first to promulgate the slight-gross rule, this was not the first legislative effort to create a comparative negligence rule. See Prosser, supra note 3, at 485-87. The first instantiation of comparative negligence to have long-lasting effect was the Federal Employers' Liability Act passed by Congress in 1908. 45 U.S.C. [section] 53 (1908).

(121.) 1913 Neb. Laws 311-12.

(122.) Id.

(123.) Schwartz, supra note 1, at [section] 3.04(a), at 73-74. See also Sgroi v. Yellow Cab & Baggage Co., Inc., 247 N.W. 355, 356 (Neb. 1933) (holding "[i]t is clear that the comparison was to be made between the negligence of the two parties, and if plaintiff was entitled to recover, then her recovery should be reduced in the proportion that her negligence contributed to the injury.").

(124.) Compare 45 U.S.C. [section] 51 (1939) and 1913 Neb. Laws 311-12. See also Prosser, supra note 3, at 478; Morrison v. Scotts Bluff County, 177 N.W. 158, 158 (Neb. 1920). The Federal Employer's Liability Act is a pure comparative negligence scheme. 45 U.S.C. [section] 51 (1939).

(125.) See Neb. Rev. Stat. [section] 25-21,185.09 (1992). For more on the history of the slight-gross system in Nebraska, see F. B. Baylor, Comparative Negligence in Nebraska, 10 S.D. B. J. 146 (1941); Kenneth P. Grubb, Comparative Negligence, 32 Neb. L. REV. 234 (1952-1953); Robert E. Johnson, Jr., Comparative Negligence--The Nebraska View, 36 Neb. L. REV. 240 (1957); Barry S. Grossman, Adjusting to Comparative Negligence in Nebraska, 25 Creighton L. Rev. 423 (1991-1992) (discussing the impact of Nebraska's comparative negligence after the 1991 amendment).

(126.) 1998 S.D. Sess. Laws 179-80; S.D.C.L. [section] 20-9-2 (1998).

(127.) For excellent discussions on the history of South Dakota contributory and comparative negligence law, see Robert J. Yeado, Comparative Negligence and the "Jackass Doctrine" (Last Clear Chance), 6 S.D. L. Rev. 96 (1961) (discussing the last clear chance exception in South Dakota jurisprudence); Judge Charles S. Hanson, Comparative Negligence, 31 S.D.B.J. 11 (1962) (examining and advocating for a different interpretation of the slight-gross rule in South Dakota); James S. Nelson, The Status of Comparative Negligence in South Dakota, 7 S.D. L. Rev. 114, (1962) (analyzing comparative negligence in South Dakota prior to 1962); Edward C. Carpenter, Comparative Negligence: A Look at the South Dakota Approach, 14 S.D. L. Rev. 92 (1969) (examining the 1964 amendment to the slight-gross statute and judicial decisions following that opinion).

(128.) S.D.C.L. [section] 20-9-2 (1998); Rachael M. O'Bar, Hoffman v. Jones: Comparative Negligence and the Demand for Equity in Fault-Based Litigation, 21 Am. J. Trial Advoc. 151, 160(1997); Christopher J. Robinette & Paul G. Sherland, Contributory or Comparative: Which is the Optimal Negligence Rule?, 24 N. Ill. U. L. Rev. 41,44 (2003).

(129.) See, e.g., Wolf v. Stenger, 239 N.W. 181 (S.D. 1931); Wittstruck v. Lee, 252 N.W 874 (S.D. 1934); Iverson v. Knorr, 298 N.W. 28 (S.D. 1941).

(130.) 252 N.W.2d at 877 (relying on Endorf v. Johnson, 241 N.W. 519, 520 (1932)). The Supreme Court held that

   [t]his court has never been of the view that there exist degrees of
   negligence per se, it being our opinion that negligence is
   absolute, consisting in the failure to exercise the degree of care
   which the ordinary reasonable man would use under the
   circumstances. Neither does this court approve the doctrine of
   comparative negligence (as was specifically pointed out in the case
   of Endorf v. Johnson, supra), whereby a jury may be permitted to
   attempt to measure the quantum of negligence of a contributorily
   negligent plaintiff as against the quantum of negligence displayed
   by the conduct of a defendant and award a recovery to plaintiff
   notwithstanding his contributory negligence if the jury believe
   such contributory negligence greatly outweighed by defendant's
   negligence. It is and has always been the rule of this state that
   plaintiffs contributory negligence bars his recovery as against a
   negligent defendant regardless of the relative amount of fault
   chargeable to either party save only in those cases where the "last
   clear chance" doctrine may properly have application.


Id.

(131.) Id.

(132.) 1941 S.D. Sess. Laws 184.

(133.) Id.

(134.) Id. See, e.g., Friese v. Gulbrandson, 8 N.W.2d 438 (S.D. 1943); Kundert v. B.F. Goodrich Co., 18 N.W.2d 786 (S.D. 1945); Roberts v. Brown, 36 N.W.2d 665 (S.D. 1949); Will v. Marquette, 40 N.W.2d 396 (S.D. 1949); Audiss v. Peter Kiewit Sons Co., 190 F.2d 238 (8th Cir. 1951); Knapp v. Styer, 280 F.2d 384 (8th Cir. 1960).

(135.) Nelson, supra note 127, at 114 (citing over thirty cases in n.8). He notes that in the first twenty years of the statute's existence, every case revolved around an auto accident. Id. It was not until the 1964 case Ries v. Daffin Corp. that a case did not involve an automobile accident. See Ries v. Daffin Corp., 131 N.W.2d 577 (S.D. 1964). That case involved a farm machine accident. Id.

(136.) See Friese, 8 N.W.2d 438 (laying the foundation for South Dakota comparative negligence law).

(137.) Id. at 439.

(138.) Id.

(139.) Id. The case notes that drivers on highways must slow to fifteen miles per hour when approaching intersections where one's view of the perpendicular road is obstructed. Id. The drivers' views were obstructed by, surprise, a cornfield. Id.

(140.) Id.

(141.) Id. at 441-42.

(142.) Id. at 441.

(143.) Id. at 442 (citing Disher v. Chi., Rock Island & Pac. R.R. Co., 140 N.W. 135 (Neb. 1913); Sodomka v. Cudahy Packing Co., 163 N.W. 809 (Neb. 1917); Baker v. Omaha & Council Bluffs St. Ry. Co., 193 N.W. 341 (Neb. 1923); Traphagen v. Lincoln Traction Co., 195 N.W. 472 (Neb. 1923); Allen v. Omaha & S. Interurban Ry. Co., 212 N.W. 428 (Neb. 1927); Anderson v. Altschuler, 252 N.W. 310 (Neb. 1934); Troup v. Porter, 252 N.W. 611 (Neb. 1934); McDonald v. Omaha & Council Bluffs St. Ry. Co., 257 N.W. 489 (Neb. 1934); Belville v. Bondesson, 266 N.W. 901 (Neb. 1996)).

(144.) Friese v. Gulbrandson, 8 N.W.2d 438,443 (S.D. 1943).

(145.) See id. at 440-41.

(146.) Id. at 441.

(147.) Id. (holding "[a] court is not warranted in passing on the constitutionality of a statute unless such a determination is essential to the disposition of the cause under consideration.").

(148.) Friese, 8 N.W.2d at 441-42. See also 1941 S.D. Sess. Laws 184.

(149.) See supra notes 95-99 and accompanying text.

(150.) Wittstruck v. Lee, 252 N.W 874, 877 (S.D. 1934); Vill. of Culbertson v. Holliday, 69 N.W. 853, 855 (Neb. 1897).

(151.) Friese, 8 N.W. 2d at 442 (quoting Monasmith, 246 N.W. at 625).

(152.) Friese, 8 N.W. 2d at 442. The court reasoned that

   [b]ecause [Nebraska] does not recognize degrees of negligence per
   se ... it has been suggested that the words have reference to
   'slight want of ordinary care.' This jurisdiction does not
   recognize degrees of negligence per se.... The statute imposes a
   standard of ordinary care.... Thus the concept of 'slight
   negligence' frequently described or defined as want of
   extraordinary care ... is without place in our law of negligence.
   Hence we have concluded that the legislature made use of the words
   'slight negligence' to describe a quantum of want of such ordinary
   care as a reasonable man would exercise under the circumstances.


Id. (internal citations omitted).

(153.) Id.

(154.) Id. The court in Friese v. Gulbrandson noted that the "legislative purpose is fully revealed". Id. Under South Dakota law, words are to be given their "plain meaning and effect" so as to find the intent of the legislature when it drafted the statute. Argus Leader v. Hagan, 2007 SD 96, [paragraph] 13, 739 N.W.2d 475, 480. For more on statutory construction and the canons of statutory constructions, see generally Norman J. Singer, Sutherland Statutory Construction (6th ed. 2000) (discussing the rules of statutory construction).

(155.) Friese, 8 N.W.2d at 443.

(156.) See id.

(157.) Id. at 442.

(158.) Id. (noting "[t]he uncertainty in the legislative concept [slight negligence] is intrinsic. We question whether a definition can be devised which will sharpen the line which separates 'slight negligence' from other shadings of want of ordinary care.").

(159.) See Kundert v. B.F. Goodrich Co., 18 N.W.2d 786 (S.D. 1945) (applying comparative negligence statute in a car collision); Roberts v. Brown, 36 N.W.2d 665 (S.D. 1949) (same).

(160.) Kundert, 18 N.W.2d at 787.

(161.) 1941 S.D. Sess. Laws 184 (emphasis added). For a short discussion of the role of the jury, see Nelson, supra note 127, at 119.

(162.) Kundert, 18 N.W.2d at 787. See Schmidt v. Royer, 1998 SD 5, [paragraph] 34, 547 N.W.2d 618, 624.

(163.) See Roberts v. Brown, 36 N.W.2d 665 (S.D. 1949) (applying comparative negligence statute in a car collision).

(164.) Id. at 667-68.

(165.) Id. See also Friese v. Gulbrandson, 8 N.W.2d 438, 442 (S.D. 1943).

(166.) Roberts, 36 N.W.2d at 667 (S.D. 1949).

(167.) Id. (emphasis added).

(168.) Id. at 668 (describing less-than-slight negligence as "negligent carefully"); see Nelson, supra note 127, at 120.

(169.) Roberts, 36 N.W.2d at 668.

(170.) Stone v. Hinsvark, 57 N.W.2d 669, 673 (S.D. 1953).

(171.) Id.

(172.) Fossum v. Zurn, 100 N.W.2d 805, 811 (S.D. 1960).

(173.) Vlach v. Wyman, 104 N.W.2d 817, 819 (S.D. 1960).

(174.) Stone, 57 N.W.2d at 673 (S.D. 1953) (citing S.D. Const, art. Ill, [section] 21 (providing "[n]o law shall embrace more than one subject, which shall be expressed in its title.")).

(175.) Id.

(176.) Id.

(177.) Id. at 674 (Smith, J., dissenting) ("In my opinion [the statute's title] is misleading and deceptive and therefore repugnant to [section] 21, Art. III of the constitution of South Dakota ... and hence the instructions on that subject were prejudicial. I think the judgment should be reversed.").

(178.) Id.

(179.) Id. at 673 (majority opinion). For more discussion on this case, see Nelson, supra note 127, at 121-22. The South Dakota comparative negligence statute still applies in cases of wrongful death. See Crabb v. Wade, 167 N.W.2d 546, 547 (S.D. 1969); Selchert v. Lien, 371 N.W.2d 791,793 (S.D. 1985).

(180.) See Fossum v. Zurn, 100 N.W.2d 805, 811 (S.D. 1960). See also Nelson, supra note 127, at 121.

(181.) See Prosser, supra note 19, at [section] 67, at 434-39.

(182.) See Schwartz, supra note 1, at [section] 2.01, at 32.

(183.) Fossum, 100 N.W.2d at 811.

(184.) Id.

(185.) Id.

(186.) Vlach v. Wyman, 104 N.W.2d 817, 819 (S.D. 1960).

(187.) Id. Most states have abandoned the doctrine of last clear chance. David W. Barnes and Rosemary McCool, Reasonable Care in Tort Law: The Duty to Take Corrective Precautions, 36 Ariz. L. Rev. 357, 384 n.83 (1994) (citing Henry Woods, Comparative Fault 180-81 (1987 & Supp. 1993)).

   The doctrine of last clear chance has crumbled under the assault of
   the rash of legislative acts and judicial decisions adopting
   comparative negligence. It is now an anomaly in comparative
   negligence jurisdictions and exists only in the old comparative
   negligence jurisdictions, notably Georgia and Mississippi, and in
   those jurisdictions where the defense of contributory negligence
   remains to some extent operable. Nebraska and South Dakota are
   examples of the latter.


Id.

(188.) Stone v. Hinsvark, 57 N.W.2d 669, 673 (S.D. 1953).

(189.) Friese v. Gulbrandson, 8 N.W.2d 438, 442 (S.D. 1943); Kundert v. B.F. Goodrich Co., 18 N.W.2d 786, 787 (S.D. 1945).

(190.) Good Low v. United States, 428 F.3d 1126, 1129-30 (8th Cir. 2005).

(191.) See Nelson, supra note 127, at 119.

(192.) Justice Harold Blackmun served on the Eighth Circuit Court of Appeals from 1959 to 1970 and then President Nixon appointed him to the United States Supreme Court in 1970. See generally Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey (New York: Times Books, 1st ed., 2005). He is, perhaps, best known for authoring the landmark opinion of Roe v. Wade, which legalized abortion in the United States. Id. For more on Justice Blackmun, his contributions, and legacy, see id.

(193.) Associated Eng'rs, Inc. v. Job, 370 F.2d 633, 640 (8th Cir. 1966) (applying the pre-1964 statute) (citing Friese, 8 N.W.2d at 442-43; Will v. Marquette, 40 N.W.2d 396, 397 (S.D. 1949)). For more on the Blackmun analysis and the guidelines set forth therein, see SCHWARTZ, supra note 1, at [section] 3.04(b)(4), at 79-80.

(194.) See Nelson, supra note 127, at 120.

(195.) See id

(196.) Associated Eng'rs, Inc., 370 F.2d at 640; Nelson, supra note 127, at 120.

(197.) Hanson, supra note 127, at 20; Carpenter, supra note 127, at 93.

(198.) Id.

(199.) 1964 S.D. Sess. Laws 182.

(200.) Nugent v. Quam, 152 N.W.2d 371, 376 (S.D. 1967).

(201.) Id.

(202.) Friese v. Gulbrandson, 8 N.W.2d 438, 442 (S.D. 1943).

(203.) Nugent v. Quam, 152 N.W.2d 371, 377 (S.D. 1967).

(204.) Id.; Crabb v. Wade, 167 N.W.2d 546, 549 (S.D. 1969).

(205.) Nugent, 152 N.W.2d at 377; Crabb, 167 N.W.2d at 549.

(206.) Crabb, 167 N.W.2d at 549.

(207.) Nugent, 152 N.W.2d at 376. For application of the rule, see Crabb, 167 N.W.2d at 549 (S.D. 1969); Westover v. E. River Elec. Power Coop., Inc., 488 N.W.2d 892, 897 (S.D. 1992); Treib v. Kern, 513 N.W.2d 908, 911-12 (S.D. 1994).

(208.) Crabb, 167 N.W.2d at 549.

(209.) Treib, 513 N.W.2d at 911-12.

(210.) See Schmidt v. Royer, 1998 S.D. 5, [paragraph] 34, 574 N.W.2d 618, 627; Wood v. City of Crooks, 1997 SD 20, [paragraph] 3, 559 N.W.2d 558, 560; Lovell v. Oahe Elec. Coop., 382 N.W.2d 396, 398 (S.D. 1986); Nugent, 152 N.W.2d at 377-78.

(211.) Treib, 513 N.W.2d at 911-12.

(212.) Westover v. E. River Elec. Power Coop., Inc., 488 N.W.2d 892, 897 (S.D. 1992); Treib, 513 N.W.2d at 911-12.

(213.) Crabb, 167 N.W.2d at 549; Urban v. Wait's Supermarket, Inc., 294 N.W.2d 793, 796 (S.D. 1980).

(214.) Crabb, 167 N.W.2d at 549.

(215.) Id.

(216.) See id.

(217.) See Engel v. Stock, 225 N.W.2d 872 (S.D. 1975).

(218.) See Crabb v. Wade, 167 N.W.2d 546 (S.D. 1969).

(219.) Engel, 225 N.W.2d at 873; Crabb, 167 N.W.2d at 548.

(220.) Pexa v. Clark, 176 N.W.2d 497, 500 (S.D. 1970).

(221.) See, e.g., Iverson v. Knorr, 298 N.W. 28, 30 (S.D. 1941); Kundert v. B.F. Goodrich Co., 18 N.W.2d 786, 787 (S.D. 1945); Flanagan v. Slattery, 49 N.W.2d 27, 32 (S.D. 1951); Grosz v. Garth, 102 N.W.2d 834, 836 (S.D. 1960); Wood v. City of Crooks, 1997 SD 20, [paragraph] 4, 559 N.W.2d 558, 562-63; Schmidt v. Royer, 1998 SD 5, [paragraph] 34, 574 N.W.2d 618, 627.

(222.) Robinson v. Mudlin, 273 N.W.2d 753, 756 (S.D. 1979). However, the South Dakota Supreme Court "reverse[d] a jury verdict for [the] defendant, ... making no mention of the slight-gross rule; it appears that causation is a viable strategy where plaintiffs negligence is an issue." Schwartz, supra note 1, at [section] 3.04(b)(2), at 77 (citing Schmidt, 1998 SD 5, 574 N.W.2d 618).

(223.) S.D.C.L. [section] 20-9-2 (2004).

(224.) Neb. Rev. Stat. [section] 25-21,185 (1992) (actions arising before February 8, 1992); Neb. Rev. Stat. [section] 25-21, 185.09 (1992) (actions arising on and after February 8, 1992). Scholars have examined the history of Nebraska's comparative negligence rule. See supra note 125 and accompanying text.

(225.) Compare S.D.C.L. [section] 20-9-2 (2004) with S.D.C.L. [section] 20-9-2 (1997).

(226.) 488 N.W.2d 63 (S.D. 1992).

(227.) Chambers, 488 N.W.2d at 66-68 (quoting Restatement (Second) of Conflict of Laws [section] 6 (1971)). The test provides, "[t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in [section] 6." The principles of [section] 6 are,

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Id. at 68.

(228.) Id. at 66. Chief Justice Miller noted Professor Charles Thatcher's law review article was instrumental in convincing him to adopt the significant relationship test. Id. at 70 (concurring specially); see Charles M. Thatcher, Choice of Law in Multi-State Tort Actions After Owen v. Owen: The Less Things Change ..., 35 S.D. L. Rev. 372 (1990) (omission in original).

(229.) Chambers, 488 N.W.2d at 69.

(230.) Id.

(231.) See Wood v. City of Crooks, 1997 SD 20, 559 N.W.2d 558 (setting a thirty percent ceiling as to what constitutes more than slight as a matter of law).

(232.) Id. [paragraph] 1.

(233.) Id.

(234.) Id.

(235.) Id. at n.1.

(236.) See id [paragraph] 1.

(237.) Wood, 1997 SD 20, [paragraph] 4, 559 N.W.2d at 560.

(238.) Id.

(239.) Id. [paragraph] 3.

(240.) See id. [paragraph] 4. See also id. at n.5.

(241.) See, e.g., Roberts v. Brown, 36 N.W.2d 665, 667-68 (S.D. 1949) (indicating that there is not exact rule or standard for what constitutes slight); Friese v. Gulbrandson, 8 N.W.2d 438, 442 (S.D. 1943) (noting the intrinsic difficulty in applying the statute); Robinson v. Mudlin, 273 N.W.2d 753, 755 (S.D. 1979) (holding the court will typically not disturb the jury verdict); Crabb v. Wade, 167 N.W.2d 546, 549 (S.D. 1969) (holding contributory negligence to be a "relative and variable term [that defies] precise definition and prohibits an arbitrary mathematical ratio limitation" and what constitutes negligence differs on a case by case basis); Urban v. Wait's Supermarket, Inc., 294 N.W.2d 793, 796 (S.D. 1980) (indicating the jury verdict turns on the individual facts of the case). However, the court discusses at length in footnote 5 its opinion that its holding does not contradict precedent. Wood, 1997 SD 20, at n.5, 559 N.W.2d at 561.

(242.) Schwartz, supra note 1, [section] 3.04(b)(5), at 81 (citing Crabb, 167 N.W.2d 546 (S.D. 1969); Smith v. Gunderson, 190 N. W.2d 841 (S.D. 1971)).

(243.) Crabb, 167 N.W.2d at 549.

(244.) Wood, 1997 SD 20, [paragraph] 4, 559 N.W.2d at 560.

(245.) S.D.C.L. [section] 20-9-2 (2004); 1998 S.D. Sess. Laws 179-80.

(246.) H. R. JOURNAL, 1315, 1998 Leg., 73d Sess., at 231 (S.D. 1998); H. R. Journal, 1315, 1998 Leg., 73d Sess., at 619-620 (S.D. 1998); H. R. Journal, 1315, 1998 Leg., 73d Sess., at 940 (S.D. 1998); S. Journal, 1315, 1998 Leg., 73d Sess., at 647-48 (S.D. 1998).

(247.) H. R. JOURNAL, 1315, 1998 Leg., 73d Sess., at 447-48 (S.D. 1998).

(248.) Id. at 619-20. Amendment "r-1315a" modified the comparative negligence statute as follows:

   person's property caused by the negligence of another, the fact
   that the plaintiff may have been guilty of contributory negligence
   [begin strikethrough]shall[end strikethrough] does not bar a
   recovery [begin strikethrough]when[end strikethrough] if the
   contributory negligence of the plaintiff was [begin
   strikethrough]slight in comparison with[end strikethrough] less
   than the negligence of the defendant, but in such case, the damages
   shall be reduced in proportion to the amount of plaintiff's
   contributory negligence.


Id. at 619.

(249.) Id. at 619-20.

(250.) S. Journal, 1315, 1998 Leg., 73d Sess., at 647-48 (S.D. 1998). The bill was modified as follows:

   In all actions brought to recover damages for injuries to a person
   or to [begin strikethrough]his[end strikethrough] that person's
   property caused by the negligence of another, the fact that the
   plaintiff may have been guilty of contributory negligence [begin
   strikethrough]shall[end strikethrough] does not bar a recovery when
   the contributory negligence of the plaintiff was slight in
   comparison with the negligence of the defendant, but in such case,
   the damages shall be reduced in proportion to the amount of
   plaintiff's contributory negligence. Notwithstanding [Wood] vs.
   City of Crooks. 559 N.W.2d 558 (SD 19971. the determination of
   whether the contributory negligence of the plaintiff was slight in
   comparison with the negligence of the defendant shall be made
   without disclosing any determination of percentage of plaintiffs
   fault by special interrogatory.


Id.

(251.) H. R. Journal, 1315, 1998 Leg., 73d Sess., at 940 (S.D. 1998); S.D.C.L. [section] 20-9-2 (1998).

(252.) S.D.C.L. [section] 20-9-2 (1998).

(253.) See id.

(254.) S. Journal, 187, 2001 Leg., 76th Sess., at 219 (S.D. 2001).

(255.) Id. at 524-25.

(256.) Id.

(257.) Id. at 525.

(258.) Id. at 524-26; H.R. Journal, 187, 2001 Leg., 76th Sess., at 667, 711-12 (S.D. 2001).

(259.) S. Journal, 84, 2010 Leg., 85th Sess., at 122 (S.D. 2010).

(260.) Id.

(261.) Id. at 416-17.

(262.) See S.D.C.L. [section] 20-9-2 (1998).

(263.) See, e.g., Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, 641 N.W.2d 112 (affirming the existence of assumption of the risk); Boomsma v. Dakota, Minn. & E. R.R. Co., 2002 SD 106, 651 N.W.2d 238 (discussing contributory negligence in terms of breach of duty); Johnson v. Armfield, 2003 SD 134, 672 N.W.2d 478 (same); Thompson v. Melhaff, 2005 SD 69, 698 N.W.2d 512 (affirming the trial court's directed verdict on contributory negligence); Dodson v. S.D. Dept, of Human Servs., 2005 SD 91, 703 N.W.2d 353 (holding contributory negligence is applicable in medical malpractice and suicide cases); Duda v. Phatty McGees Inc., 2008 SD 115, 758 N.W.2d 754 (holding that assumption of the risk is not incompatible with comparative negligence); Wangsness v. Builders Cashway, Inc., 2010 S.D. 14, 779 N.W.2d 136 (clarifying the relationship between assumption of the risk and contributory negligence).

(264.) Parker, 2002 SD 29, [paragraph], 641 N.W.2d at 115.

(265.) Phatty McGees Inc., 2008 SD 115, [paragraph] 12, 758 N.W.2d at 758.

(266.) Id. (quoting Restatement (Second) of Torts [section] 496D, cmt. c (1965)). However, the objective standard alluded to by the court is merely the first step of the analysis under South Dakota's comparative negligence scheme. Treib v. Kern, 513 N.W.2d 908, 911-12 (S.D. 1994). The second step requires the fact finder to compare directly the negligence of the plaintiff and the defendant or defendants. Westover v. E. River Elec. Power Coop., Inc., 488 N.W.2d 892, 897 (S.D. 1992). As the second step is a relative comparison, this leaves room for speculation as to whether assumption of the risk remains valid. Phatty McGees Inc., 2008 SD 115, [paragraph] 35, 758 N.W.2d at 763 (Meierhenry, J., dissenting).

(267.) Phatty McGees Inc., 2008 SD 115, [paragraph] 35, 758 N.W.2d at 763 (Meierhenry, J., dissenting) (citing Braswell v. Econ. Supply Co., 281 So.2d 669 (Miss.1973); Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971); City of Tucson v. Holliday, 3 Ariz. App. 10, 411 P.2d 183 (1966); 21 Am Jur Trials 715, [section] 11; Restatement (Third) Torts: Apportionment of Liab. [section] 2 cmt. i (2000) (replacing Restatement (Second) of Torts [section] 496C-496G (1965)).

(268.) Armfield, 2003 SD 134, [paragraph][paragraph] 2-3, 672 N.W.2d at 480.

(269.) Id. [paragraph] 4.

(270.) See id.

(271.) Id. [paragraph][paragraph] 5-6.

(272.) Id. [paragraph] 18.

(273.) Id. [paragraph] 10 (quoting Boomsma v. Dakota, Minn. & E. R.R. Co., 2002 SD 106, 651 N.W.2d 238 (internal quotations omitted)).

(274.) Id. [paragraph][paragraph] 11-13.

(275.) Id. [paragraph][paragraph] 14-15.

(276.) Dodson v. S.D. Dept, of Human Servs., 2005 SD 91, [paragraph] 8, 703 N.W.2d 353, 356.

(277.) Id. [paragraph] 3.

(278.) Id. [paragraph] 4.

(279.) Id.

(280.) Id. [paragraph] 5.

(281.) Id. [paragraph][paragraph] 8-15. The court stated the general rule as:

   One whose mental faculties are diminished, not amounting to total
   insanity, is capable of contributory negligence, but is not held to
   the objective reasonable-person standard. Rather, such a person
   should be held only to the exercise of such care as he or she was
   capable of exercising, that is, the standard of care of a person of
   like mental capacity under similar circumstances.


Id. [paragraph] 8 (quoting 57B Am. Jur. 2d Negligence [section] 864 (2005)). The court also cited authorities that do not apply the contributory negligence defense in suicide cases. Id. [paragraph] 9 (citing McNamara v. Honeyman, 406 Mass. 43, 546 N.E.2d 139, 146-147 (1989); Cowan v. Doering, 215 N.J.Super. 484, 522 A.2d 444, 448 (App.Div.1987); Cole v. Multnomah County, 39 Or. App. 211, 592 P.2d 221, 223 (1979); Hoeffner v. The Citadel, 311 S.C. 361, 429 S.E.2d 190, 193 (1993)).

(282.) Id. [paragraph] 10.

(283.) Id. [paragraph][paragraph] 18-19.

(284.) See id. [paragraph] 8.

(285.) See supra Part II.C.1-2; 8 N.W.2d 438 (S.D. 1943).

(286.) 1964 S.D. Sess. Laws 182.

(287.) Nugent v. Quam, 152 N.W.2d 371, 377-78 (S.D. 1967); Crabb v. Wade, 167 N.W.2d 546, 549 (S.D. 1969).

(288.) See supra Part II.C.6-7. While the central problem of the slight-gross rule is definitional, this problem spawns other frustrations, e.g. apportionment of fault, apportionment of damages, jury instructions, and excessive appeals. See Prosser, supra note 3, at 484-89; see infra Part III.A-F.

(289.) See supra Part II.C.0-c.

(290.) See, e.g., Friese v. Gulbrandson, 8 N.W.2d 438, 442 (S.D. 1943) (noting the intrinsic difficulty in applying the statute); Roberts v. Brown, 36 N.W.2d 665, 668-69 (S.D. 1949) (noting this form of comparative negligence leads to confusion and uncertainty) (Sickel J., concurring specially); Will v. Marquette, 40 N.W.2d 396, 397 (S.D. 1949) (noting the recent difficulties in applying the statute); Flanagan v. Slattery, 49 N.W.2d 27, 32 (S.D. 1951) (commenting that a "more practical [comparative negligence] law could be enacted") (Rudolph J., and Sickel J., dissenting); Stone v. Hinsvark, 57 N.W.2d 669, 674 (S.D. 1953) (stating that the comparative negligence law is misleading, deceptive, and unconstitutional) (Smith, J., dissenting); Windburn v. Vander Vorst, 59 N.W.2d 819, 822 (S.D. 1953) (finding the "uncertainty in the legislative concept is intrinsic" and "no exact rule or standard can be fixed for its application"); Plenis v. Wilson Storage & Transfer Co., 66 N.W.2d 68, 71 (discussing "throughout the years neither man, court nor legislature has been able to furnish any yardstick or rule whereby negligence can be measured or degree determined. The result must always depend upon the circumstances of the particular case and nothing else."); Chi. & N.W. Ry. Co. v. Bork, 223 F.2d 652, 656 (8th Cir. 1955) (stating the slight-gross "comparative negligence rule is a difficult one to apply"); Yeado, supra note 127, at 96 (criticizing the incompatibility of the last clear chance doctrine and comparative negligence rule); Hanson, supra note 127, at 11 (advocating for changes to the South Dakota comparative negligence statute); Nelson, supra note 127, at 114 (noting the difficulty in consistently applying the comparative negligence statute, particularly the definition of "slight"); Prosser, supra note 21, at [section] 67, at 437 (stating the slight-gross rule "revives old unhappy experience of headaches for the courts of Illinois and Kansas, and curtail the effectiveness of the" slight-gross rule); Prosser, supra note 3, at 484-89 (discussing, in general, the hardships and difficulties associated with slight-gross comparative negligence); Schwartz, supra note 1, at [section] 3.04, at 73-81 (same); Mutter, supra note 107, at 230 (analyzing comparative negligence in Tennessee and calling the slight-gross older and disfavored); Stuart F. Schaffer, Informing the Jury of the Legal Effect of Special Verdict Answers in Comparative Negligence Actions, 1981 Duke L.J. 824 (1981) (discussing the problem of juries not wanting to adhere to the rule because of inequitable outcomes); Grubb, supra note 125, at 247 (discussing the problems with the slight-gross rule); Johnson, supra note 125, at 257 (1957) (discussing changes to the slight-gross rule in Nebraska); Grossman, supra note 125, at 423 (1991-1992) (approving of the Nebraska Legislature's move to abrogate the slight-gross rule in 1991-1992).

(291.) Comparative Negligence Manual (Third) [section] 1.3(1986).

(292.) Prosser, supra note 3, at 485.

(293.) Id. at 486.

(294.) Id. at 508.

(295.) Id. at 489.

(296.) Id.

(297.) See id at 487-89.

(298.) 21 Am. Jur. Trials 715, [section] 4 (1974) (written by Judge Henry Woods).

(299.) Prosser, supra note 3, at 489.

(300.) See generally Perry, supra note 19 (reviewing moral theory behind tort law). A review of moral theory on tort law at this point would be impractical. For a great discussion on the theoretical underpinnings of tort law in moral philosophy, see id. See also Prosser, supra note 19; Calabresi & Hirschoff, supra note 19, at 1055; Coleman, supra note 19, at 349.

(301.) Restatement (Third) of Torts: Apportionment of Liability [section] 1 cmt. a (2000).

(302.) Id.

(303.) See id.

(304.) See id.

(305.) See Perry, supra note 19, at 449; Prosser, supra note 3, at 468-69.

(306.) See Prosser, supra note 3, at 508; Robinette & Sherland, supra note 128, at 60.

(307.) See Robinette & Sherland, supra note 146, at 59; Prosser, supra note 3, at 508-9.

(308.) Prosser, supra note 3, at 489 (emphasis added).

(309.) See Prosser, supra note 3, at 489; Rappaport, supra note 19, at 572.

(310.) See Prosser, supra note 3, at 489; Rappaport, supra note 19, at 572. "[Normative statements] make claims on us; they command, oblige, recommend, or guide. Or at least, when we invoke them, we make claims on one another. When I say that an action is right I am saying that you ought to do it...." (footnote omitted). Id. at 572, n.22 (quoting Christine M. Korsgaard, The Sources of Normativity 8 (Conora O'Neill ed., 1996).

(311.) See Perry, supra note 19, at 452-53.

(312.) Perry, supra note 19, at 452-55 (1992) (citing ARISTOTLE, Nicomachean Ethics (Martin Ostwald trans., 1962) (analyzing virtue, morality, eudaimonia, and the contents of a good life)).

(313.) Perry, supra note 19, at 452-55 (1992) (citing Aristotle, supra note 19, at Book V, 1132a7-14).

(314.) Aristotle, supra note 19, at Book V, 1132a25-30.

(315.) See Prosser, supra note 19, at [section] 67, at 434-39; Perry, supra note 19, at 452-53.

(316.) Prosser, supra note 3, at 489.

(317.) See id.; Perry, supra note 19, at 452-61; Rappaport, supra note 1919, at 582-84;

(318.) Cooter & Ulen, supra note 19, at 1110. This article discusses in depth the relative economic efficiency of each comparative negligence scheme. Id. See also Robinette & Sherland, supra note 128, at 60.

(319.) Cooter & Ulen, supra note 19, at 1110.

(320.) Cooter & Ulen, supra note 19, at 1069 (citing Richard Posner, Economic Analysis of Law [section] 6.3, at 124 (2d ed. 1977). "Until recently the standard teaching in law and economics was that a doctrine of comparative negligence was inferior to the common-law rule that treated an injured party's contributory negligence as an absolute bar to tort recovery." Moorehouse, Morriss, & Whaples, supra note 19, at 674, n.35 (quoting Daniel Orr, The Superiority of Comparative Negligence: Another Vote, 20 J. Legal Stud. 119, 119(1991)).

(321.) See id.

(322.) Cooter & Ulen, supra note 19, at 1110.

(323.) Id.

(324.) Id.

(325.) Prosser, supra note 3, at 468-69; SCHWARTZ, supra note 1, at [section] 1.02, at 5.

(326.) SCHWARTZ, supra note 1, at [section] 1.02(d)(1).

(327.) Prosser, supra note 3, at 468-69; Schwartz, supra note 1, at [section] 1.02, at 5.

(328.) Prosser, supra note 3, at 485.

(329.) See supra Part III.B.

(330.) Stone v. Hinsvark, 57 N.W.2d 669, (S.D. 1953); Knapp v. Styer, 280 F.2d 384 (D.S.D. 1960).

(331.) Prosser, supra note 3, at 468-69; Schwartz, supra note 1, at [section] 1.02, at 5; Stone, 57 N.W.2d at 673; Knapp, 280 F.2d at 389.

(332.) Prosser, supra note 3, at 468-69; Schwartz, supra note 1, at [section] 1.02, at 5.

(333.) Galena & C.U.R. Co. v. Jacobs, 20 111. 478, 497 (111. 1858).

(334.) Elliot, supra note 96, 95-96; Prosser, supra note 3, at 484.

(335.) Elliot, supra note 96, 95-96; Prosser, supra note 3, at 468-69, 484; Schwartz, supra note 1, at [section] 1.02, at 5.

(336.) Prosser, supra note 3, at 484.

(337.) 252 N.W. 874, 877 (S.D. 1934)

(338.) Friese v. Gulbrandson, 8 N.W.2d 438, 442 (S.D. 1943) (citing Wittstruck v. Lee, 252 N.W 874, 877 (S.D. 1934)).

(339.) Prosser, supra note 3, at 484.

(340.) Friese, 8 N.W.2d at 442 (citing Wittstruck, 252 N.W at 877).

(341.) Id.

(342.) Id. (internal citations omitted).

(343.) Id.

(344.) Id.

(345.) Id. See supra Part II.C.

(346.) Captain John E. Settle, Comparative Negligence. By Victor E. Schwartz. Indianapolis Indiana: Allen Smith Company, 1974. pp. 434. No Price, 18 A.F. L. Rev. 111 (1976). Victor E. Schwartz is one of the preeminent scholars in the field of comparative negligence law. Id. He was a former dean and professor of law at the University of Cincinnati College of Law. Id. He penned his seminal treatise on comparative negligence--called Comparative Negligence--in 1974, which continues today and is currently in its 5th edition. Id. See generally Schwartz, supra note 1.

(347.) Schwartz, supra note 1, at [section] 3.04(a), at 74.

(348.) Id.

(349.) Friese v. Gulbrandson, 8 N.W.2d 438,442 (S.D. 1943).

(350.) Webster's New Collegiate Dictionary 601 (8th ed. 1979) (defining "intrinsic" as "belonging to the essential nature or constitution of a thing.").

(351.) See Friese, 8 N.W.2d at 442.

(352.) Id.

(353.) Id. (citation omitted).

(354.) Webster's New Collegiate Dictionary 937 (8th ed. 1979) (defining "quantum" as "quantity, amount.").

(355.) 1964 S.D. Sess. Laws 182; Crabb v. Wade, 167 N.W.2d 546, 549 (S.D. 1969).

(356.) Crabb, 167 N.W.2d at 549.

(357.) Id.

(358.) Nugent v. Quam, 152 N.W.2d 371, 377 (S.D. 1967). For application, see Crabb, 167 N.W.2d at 549; Westover v. East River Elec. Power Co-op., Inc., 488 N.W.2d 892, 897-98 (S.D. 1992); Treib v. Kern, 513 N.W.2d 908, 911-12 (S.D. 1994).

(359.) See supra note 358 and accompanying text.

(360.) Nugent, 152 N.W.2d at 376-77; Crabb, 167 N.W.2d at 549.

(361.) Crabb, 167 N.W.2d at 549.

(362.) Id.

(363.) See Prosser, supra note 3, at 487-89; Friese v. Gulbrandson, 8 N.W.2d 438, 442 (S.D. 1943); Crabb, 167 N.W.2d at 549.

(364.) See Prosser, supra note 3, at 485-85.

(365.) Crabb, 167 N.W.2d at 549. See also supra notes 215-219 and accompanying text; Sandberg v. Peter Kiewit Sons Co., 364 F.2d 206, 208 (8th Cir. 1966) (providing "where there is room for difference of opinion upon these questions, they must be submitted to the jury.").

(366.) See supra notes 215-219 and accompanying text.

(367.) Prosser, supra note 3, at 485.

(368.) Id. at 486.

(369.) Id. at 508.

(370.) Wat 489.

(371.) See id. at 487-89.

(372.) Schwartz, supra note 1, at [section] 3.04(a), at 74.

(373.) Id.

(374.) Prosser, supra note 3, at 487.

(375.) See Treib v. Kern, 513 N.W.2d 908, 912 (S.D. 1994); Wood v. City of Crooks, 1997 SD 20, [paragraph] 3, 559 N.W.2d 558, 560.

(376.) Kundert v. B.F. Goodrich Co., 18 N.W.2d 786, 787 (S.D. 1945). See also Schmidt v. Royer, 1998 SD 5, [paragraph] 34, 547 N.W.2d 618, 624.

(377.) See supra Part II.C.

(378.) Engel v. Stock, 225 N.W.2d 872, 873 (S.D. 1975).

(379.) Crabb v. Wade, 167 N.W.2d 546, 549 (S.D. 1969).

(380.) Wood v. City of Crooks, 1997 SD 20, [paragraph] 1, 559 N.W.2d 558, 559.

(381.) Id. [paragraph][paragraph] 4-5.

(382.) Id. [paragraph] 1.

(383.) See id.

(384.) See supra note 290 and accompanying text.

(385.) Schwartz, supra note I, at [section] 3.04(a), at 74.

(386.) Prosser, supra note 3, at 508.

(387.) See Schwartz, supra note 1, at [section] 3.04(a), at 74; PROSSER, supra note 19, at [section] 67, at 434-39; Prosser, supra note 3, at 487-89; Comparative Negligence Manual (Third)[section] 1:3 (1986).

(388.) See Prosser, supra note 3, at 508. See also supra Parts II.A.2-3.

(389.) Prosser, supra note 3, at 494. Prosser also argued the 49/51 rule should be avoided "as the pestilence." Id. at 508.

(390.) Cooter & Ulen, supra note 19, at 1110.

(391.) See Schwartz, supra note 1, at [section] 2.01(a), at 33.

(392.) See supra notes 49-53 and accompanying text.

(393.) See S.D. Const, art. III. [section] 1.

(394.) Schwartz, supra note 1, at [section] 22.01(e), at 478.

(395.) Mutter, supra note 107, at 238.

(396.) Schwartz, supra note 1, at [section] 2.04, at 55-56 (citing North Carolina Legislative Research Commission (Report to the General Assembly 1981), Laws of Evidence and Comparative Negligence); Id. at [section] 22.01(e), at 478-79 (citing Maurice Rosenberg, Comparative Negligence in Arkansas: A "Before and After" Survey, 13 Ark. L. Rev. 89, 108-09 (1959); Peck, supra note 25, at 726-28; Jerry D. Todd, The Prospect for Automobile Insurance Rate Changes under Comparative Negligence, 36 TEX. B.J. 1153, 1157 (1973); Gardner, supra note 25, at 1).

(397.) See SCHWARTZ, supra note 1, at [section] 2.04, at 55-56 (citing North Carolina Legislative Research Commission (Report to the General Assembly 1981), Laws of Evidence and Comparative Negligence).

(398.) Id. at [section] 2.04, at 56.

(399.) Gardner, supra note 25, at 55 (citation omitted).

(400.) See Gardner, supra note 25, at 55-56.

(401.) See Couch on Insurance (Third) [section][section] 1:6-1:9(2005).

(402.) Schwartz, supra note 1, at [section] 22.01(d)-(e), at 478-79.

(403.) See Mutter, supra at note 107, at 237-245.

(404.) McIntyre v. Balentine, 833 S.W.2d 52,57(Tenn. 1992). Under the old rule, the plaintiff was not barred from recovery when his or her negligence was a "remote contributory cause." Mutter, supra at note 107, at 214. See, City of Chattanooga v. Shackleford, 298 S.W.2d 743, 746 (Term. 1958). See also Prosser, supra note 3, at 485, n.124.

(405.) Mutter, supra at note 107, at 204.

(406.) Id. at 202-204.

(407.) See id at 237-245.

(408.) Id. at 205.

(409.) See S.D.C.L. [section] 20-9-2 (1998); Schwartz, supra note 1, at [section] 3.04(b), at 75.

(410.) See Prosser, supra note 3, at 485, n.124 and accompanying text.

(411.) McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992).

(412.) Gardner, supra note 25, at 56.

(413.) See Schwartz, supra note 1, at [section] 3.04(a), at 74; Wood v. City of Crooks, 1997 SD 20, 3, 559 N.W.2d 558, 560.

(414.) See Schwartz, supra note 1, at [section] 2.04, at 55-56 and [section] 22.01(e), at 478-79.

(415.) See id.

(416.) Id.

(417.) Hilen v. Hays, 673 S.W.2d 713, 718 (Ky. 1984).

HARRISON FORD HAGG, J.D. Candidate, 2014, University of South Dakota School of Law; B.A. Philosophy, 2011, Creighton University. The author would like to thank his parents, Rexford and Cindy, his brother, Austin, his girlfriend, Jessica, his friends, and the University of South Dakota School of Law for their unyielding love, support, and guidance. Special thanks to my father Rexford Hagg for his insights into and critical discussion of the legal and legislative history, Jonathon Heber, Ashley Hoffman, William Conway, and Mike Snyder for their assistance in editing this article, and the rest of the Volume 59 SOUTH DAKOTA Law Review Board for their invaluable contributions.
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