Does the 25% cap apply as a firm cap?

However, that said, there is a compelling reason why the 25% figure should apply as a firm cap. The reason is self-evident. As soon as 25% is characterized as being only a guideline, then a trial judge must be able to explain to the litigants, or to a jury, what sorts of factors would warrant going above 25% and what sorts of factors would warrant going below that level. Moreover, it would be necessary to be able to explain how far above or how far below 25% various kinds of conduct should drive the apportionment. The relevant factors in this regard, presumably, would be ones relating to the relative blameworthiness of the parties. But, opening that door lets in the very imponderables that the Froom v. Butcher approach is designed to avoid. As indicated above by way of example, how does a fact-finder assess the relative blameworthiness of an individual who knowingly drives a car in bad repair and thereby causes an accident as compared to someone who, for example, unbuckles a seat belt to assist a child? And, moreover, how can that be done so as to maintain reasonable equity between and among cases. At the end of the day, I think the system will work more fairly, more simply and more understandably if the 25% figure is seen as a cap.