The Rise and Fall and Perhaps Rise Again of the "Blindfold Rule" in Modified Comparative Fault Cases: A Proposed Experiment

Jordan H. Leibman, Indiana University
Robert B. Bennett, Butler University
Richard Fetter, Butler University


... Wyoming and Illinois are among the states that maintain systems of modified comparative fault. ... The experiment also provides a comparative measure of the economic effects of the four principal defensive rule regimes: (1) contributory-negligence-as-a-complete-defense; (2) pure comparative fault; (3) modified comparative fault under the blindfold rule; and (4) modified comparative fault under a sunshine rule. ... So, when the Wisconsin legislature, in 1931, enacted a modified comparative fault law, a blindfold rule automatically came into effect in cases where special verdicts were submitted. ... The language of section 1-7.2 of the statute closely followed the Wisconsin law with its special verdict requirements. ... Despite Illinois' abandonment of its experiment with comparative fault principles, there was increasing dissatisfaction with contributory negligence. ... With respect to jury instructions, the statute provided that "[t]he court shall instruct the jury in writing that the defendant shall be found not liable if the jury finds that the contributory fault of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought." ...