Vanderbilt Law Review

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John W. Wade

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The majority opinion in the Illinois Supreme Court held that if a change was to be made, the task was for the legislature, not the court. The five in the majority were not ready to deliver an opinion like that in MacPherson, Henningsen, Greenman.' If they had, there is real reason to believe that a similar consequence of an immediate and substantial judicial following would have developed. Without saying so, they seemed to be influenced by the thought that they would be complete pioneers in uncharted territory, with no precedents to rely upon or to interpret. Are there any judicial precedents? Yes--quite a number--all relevant, but in varying degrees and in differing respects. Some courts have adopted a form of comparative negligence. The leading example is Tennessee with its judicially created doctrine of remote contributory negligence, which is actually a form of comparative negligence, though the Tennessee Supreme Court has frequently denied it. The essential difference between the Tennessee rule and ordinary comparative negligence is that in the latter, damages are mitigated or diminished in accordance with the relative degrees of negligence of the parties, while in the former, they are diminished in accordance with the relative closeness of the causal connection. The Tennessee doctrine, which developed gradually through court decisions, is now firmly established.

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