[PART
IV.]Ā  COMPARATIVE NEGLIGENCE



 



Law Journals and Reviews



 



Ā  Tort and Insurance "Reform" in a Common Law Court.Ā 
14 UH L. Rev. 55.



 



Ā§663-31Ā  Contributory negligence no bar;
comparative negligence; findings of fact and special verdicts.Ā  (a)Ā 
Contributory negligence shall not bar recovery in any action by any person or
the person's legal representative to recover damages for negligence resulting
in death or in injury to person or property, if such negligence was not greater
than the negligence of the person or in the case of more than one person, the
aggregate negligence of such persons against whom recovery is sought, but any
damages allowed shall be diminished in proportion to the amount of negligence
attributable to the person for whose injury, damage or death recovery is made.



(b)Ā  In any action to which subsection (a) of
this section applies, the court, in a nonjury trial, shall make findings of
fact or, in a jury trial, the jury shall return a special verdict which shall
state:



(1)Ā  The amount of the damages which would have been
recoverable if there had been no contributory negligence; and



(2)Ā  The degree of negligence of each party, expressed
as a percentage.



(c)Ā  Upon the making of the findings of fact or
the return of a special verdict, as is contemplated by subsection (b) above,
the court shall reduce the amount of the award in proportion to the amount of
negligence attributable to the person for whose injury, damage or death
recovery is made; provided that if the said proportion is greater than the
negligence of the person or in the case of more than one person, the aggregate
negligence of such persons against whom recovery is sought, the court will
enter a judgment for the defendant.



(d)Ā  The court shall instruct the jury
regarding the law of comparative negligence where appropriate. [L 1969, c 227,
Ā§1; am L 1972, c 144, Ā§2(i); am L 1975, c 152, Ā§1; am L 1976, c 161, Ā§1; gen ch
1985]



 



Law Journals and Reviews



 



Ā  For a discussion of the doctrines of contributory and
comparative negligence, see A Proposal for the Judicial Adoption of Comparative
Negligence in Hawaii.Ā  5 HBJ 49.



Ā  Tort Law--Bertelmann v. Taas Associates:Ā  Limits on Dram Shop
Liability; Barring Recovery of Bar Patrons, Their Estates and Survivors.Ā  11 UH
L. Rev. 277.



Ā  Ozaki and Comparative Negligence:Ā  Imposing Joint Liability
Where a Duty to Protect or Prevent Harm from Third Party Intentional
Tortfeasors Exits Is Fairer to Plaintiffs and Defendants.Ā  26 UH L. Rev. 575.



 



Case Notes



 



Ā  In Federal Tort Claims Act action against United States of
America for damages for personal injuries plaintiffs sustained when they were
scalded by lava heated ocean water, judgment to be entered in favor of the
government, where court found, inter alia, that because plaintiffs knowingly
entered a closed area with an open and obvious hazard, not only was their
behavior unreasonable, but they alone were responsible for their injuries.Ā  73
F. Supp. 2d 1172.



Ā Comparative negligence doctrine will not be applied to claims
accruing before July 14, 1969.Ā  51 H. 636, 466 P.2d 429.Ā  Comparative
negligence applies only to claims accruing after July 14, 1969, and the rule of
contributory negligence continues on claims that accrued before that date.Ā  52
H. 129, 471 P.2d 524.



Ā  Contributory negligence is available as defense against
claims accruing before July 14, 1969.Ā  55 H. 375, 520 P.2d 62.



Ā  Evidence relating to degree of fault of nonparty litigant
should not be presented to diminish plaintiff's verdict.Ā  56 H. 598, 546 P.2d
527.



Ā  Costs allowable to prevailing party not subject to reduction
in proportion to negligence attributable.Ā  56 H. 613, 546 P.2d 1013.



Ā  Prior law.Ā  "Negligence of the person against whom
recovery is sought" means aggregate negligence of defendants.Ā  64 H. 401,
642 P.2d 930.



Ā  Section does not affect action between two joint tortfeasors
under sections 663-11 to 17.Ā  65 H. 428, 653 P.2d 96.



Ā  Comparative negligence principles not applicable to strict
liability case.Ā  69 H. 176, 738 P.2d 79.



Ā  Contributory negligence is no longer a complete defense or
total bar to a tort claim; legislature, in enacting comparative negligence
statute did not intend to alter judicially created derivative action for loss
of consortiums.Ā  69 H. 192, 738 P.2d 85.



Ā  Pure comparative negligence principles apply to strict
products liability claims.Ā  69 H. 232, 738 P.2d 416.



Ā  Section required that judgment be entered for defendant where
jury's special verdict apportioned greater fault to victim than to defendant.Ā 
87 H. 265, 954 P.2d 644.



Ā  Where arbitrator's award apportioned liabilities in
passenger's action against passenger's driver and driver of other vehicle as
seventy per cent to thirty per cent negligent respectively, and arbitrator's
award had collateral estoppel effect, subsection (a) barred recovery by passenger's
driver in separate action against other driver.Ā  90 H. 143, 976 P.2d 904.



Ā  Instructions to jury.Ā  1 H. App 94, 614 P.2d 402.



Ā  Comparative negligence and products liability doctrines
merged; in products liability case injured plaintiff cannot recover if more
negligent than defendant.Ā  6 H. App. 652, 736 P.2d 440.



Ā  Because this section clearly permits apportionment of damages
and no justification exists to maintain doctrine of last clear chance, use of
doctrine by a plaintiff abolished.Ā  83 H. 78 (App.), 924 P.2d 572.



Ā  Trial court should have instructed jury on law of comparative
negligence and failure to do so made jury instructions that were given
prejudicially insufficient.Ā  83 H. 78 (App.), 924 P.2d 572.



Ā  In light of the plain language of HAR rule 23(a), trial court
abused its discretion when it sanctioned defendant by apportioning defendant's
and plaintiff's negligence based on arbitrator's award, and the apportionment
sanction deprived defendant of a jury determination as to the degree of negligence
of the parties, in violation of this section.Ā  99 H. 432 (App.), 56 P.3d 734.



Ā  Cited:Ā  60 H. 381, 590 P.2d 564.



 



Hawaii Legal Reporter Citations



 



Ā  Abrogation of doctrine of assumption of risk.Ā  79 HLR
79-0001.