This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation mechanisms was identified by the drafters of the Third Restatement of Torts on Apportionment of Damages, which proposed abolishing mitigation altogether and subsuming it under comparative negligence. Surprisingly, this revolutionary proposition was not preceded nor followed by any academic discussion. This is the first article ever to present a full-fledged account of the interrelation between comparative negligence and mitigation in tort law. That interrelation is addressed from three different perspectives. First, on the level of positive analysis, the article revisits the entrenched dichotomy between the doctrines, reveals their often overlooked similarities, and at the same time sharpens the distinctions between them. Second, the article exposes the theoretical tension seemingly generated by the coexistence of comparative negligence and mitigation in the modern law of tort. It offers an integrative thesis under which this tension may be relaxed, at least to some extent. Finally, on the normative level, this article challenges the widespread belief that the mitigation doctrine is morally sound and economically efficient. This is accomplished by exposing the limits of the aforementioned integrative thesis and by illustrating the unfairness and inefficiency to which a blind application of the mitigation principle may lead. To solve these hardships, and to relax the theoretical tension between the doctrines, the article calls for a reform of this area of law, along the lines of the Third Restatement's overlooked proposal.
- comparative negligence,
- mitigation of damages,
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