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

Author:Hagg, Harrison Ford

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.


    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)


    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)


      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)


      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...

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