B. The Destruction of a Traditional Common Law Balance

The Adoption of Comparative Negligence for Plaintiffs Only

Prior to looking at specific Michigan employment rights cases, it is instructive to step back for just a moment and look at a Michigan case that affects liability litigation more generally. This is the case of Placek v. City of Sterling Heights [38] where the Michigan Supreme Court replaced the common law doctrine of contributory negligence with the new doctrine of comparative negligence. The case is significant because of the judicial philosophy it exhibits, what changes it makes in the common law, and also what changes it fails to make.

The theory of contributory negligence was part of a great traditional common law liability balancing scheme. A plaintiff could recover his full damages against any negligent defendant as long as he was not negligent himself. If there was more than one defendant, the plaintiff could recover his full damages against any one of the defendants (the common law doctrine of joint and several liability). If a plaintiff's negligence contributed to the plaintiff's injury, he could no longer recover. For nearly two centuries, this was the basic common law scheme. However, as the legal system in this country began to focus more favorably on the individual's right to sue, this scheme became more and more unpalatable. Especially in the legal atmosphere of the 1960's and 70's, contributory negligence came to be seen as unfair.

With Placek, the Michigan Supreme Court decided to become the fourth supreme state bench to do away with contributory negligence and replace it with a more plaintiff-friendly doctrine. The court immediately revealed its attitude by announcing that "(t)here is little dispute among legal commentators that the doctrine of contributory negligence has caused substantial injustice". However, the court failed to follow up this statement with an analysis of why contributory negligence causes injustice. Instead, the doctrine is simply done away with, as if the shift to comparative negligence was the only natural and fair thing to do.

What is even more interesting is the kind of comparative negligence the court decided to adopt. The court stated that it was adopting "pure" comparative negligence, where the plaintiff always recovers for the defendant(s) percentage of fault, regardless of how much fault the plaintiff bears. Under this so-called "pure" scheme, if a plaintiff is 25% at fault and the defendant(s)' fault is 75%, the plaintiff recovers 75% of his damages. Likewise, if the plaintiff is 75% at fault and the defendant(s)' fault is 25%, the plaintiff recovers 25% of his damages.

However, this is not really "pure" comparative negligence at all. That is because it is comparative negligence for the plaintiff only – it is not comparative negligence for the defendant(s). Each defendant still has the burden of joint and several liability. The plaintiff can still collect his full damages against any one of the defendants, regardless of tile percentage of fault that particular defendant may have. Thus, if the plaintiff and each of three defendants is 25% at fault, tile plaintiff can still collect the full 75% from any of the three defendants. To this day, the Michigan Supreme Court has not seen fit to eliminate joint and several liability for defendants.

The fact that the court would correct a perceived unfairness to plaintiffs, without providing an equal correction for defendants, is instructive, The court destroys a carefully developed common law balance to favor plaintiffs, but takes no corrective measures to establish a new balance. The consequences of the adoption of only a partial comparative negligence scheme have, to no one's surprise, been dramatically pro-litigation growth. Plaintiffs have a much easier time maintaining a law suit, since their own negligence no longer impedes their suit, yet they can still go after numerous defendants, regardless of the tatters' percentages of fault, and collect their full damage entitlements from any of them. With contributory negligence no longer legally standing in their way, yet with joint and several liability still fully protecting them, plaintiffs are given a powerful invitation to pursue as many suits and as many defendants (particularly of tile "deep pocket" variety) as possible. (And, as was discussed earlier, it is not just important what subject matter a person may bring a lawsuit under, but equally important how much litigation exists in sheer volume. General litigiousness can be just as constraining on tile free market as the number of causes of action that a court will recognize.)

No common law subject area shows more clearly the judicial bias in favor of tile plaintiff than the adoption of only partial comparative negligence. The court is here demonstrating that it is only interested in protecting the compensation rights of tile complaining individual, without giving any regard to the unfair consequences to defending parties and society as a whole. It is with this spirit that Michigan's courts have functioned in the last two decades, and the employment rights cases of the 1970's and 80's reflect and bask in that spirit.