Tort law contains multiple doctrines governing the assignment of liability and the calculation of damages. But in what sequence should courts apply these doctrines? Does it matter, for example, whether a court applies comparative fault before or after mitigation of damages? The answer, rather surprisingly, is that sequencing does matter, and it can substantially affect the compensation that a tort victim ultimately receives. Yet the existing case law on sequencing is ad hoc, inconsistent, and undertheorized, and the issue has been entirely overlooked by the academic literature.
In this Article, we introduce and examine the question of sequencing. We offer three contexts in which the question arises in torts: failures to mitigate, damage caps, and collateral sources of funding. All of these contexts play a major role in determining liability and compensation, yet each demonstrates a different way in which attention to sequencing can improve legal analysis. Building on these examples, we develop a general theory of damages sequencing.
* Edward K. Cheng is the Hess Professor of Law, Vanderbilt University. Ehud Guttel is the Bora Laskin Professor of Law, Hebrew University of Jerusalem. Yuval Procaccia is an Associate Professor of Law, Reichman University.
The Authors would like to thank Alex Stein, several anonymous peer reviewers, and the editors of the Stanford Law Review for helpful comments; Sarah Dunaway for library assistance; and Brooke Bowerman, Brandon Calderón, Neta Dagan, and Daniel Raas Rothschild for excellent research assistance. Ed Cheng also thanks the Vanderbilt Dean’s Summer Research Fund and the Faculty of Law at the Hebrew University of Jerusalem, where he was a visiting professor in 2020.