Negligence - Various forms of comparative negligence

Learning Outcomes

After reading this article, you will be able to distinguish between pure and modified comparative negligence, identify how each affects a plaintiff’s recovery, and apply these rules to MBE-style questions. You will also recognize common traps, such as the effect of multiple defendants and the relationship between comparative negligence and other defenses, ensuring you can answer related MBE questions accurately.

MBE Syllabus

For the MBE, you are required to understand the different approaches to comparative negligence and how they affect the outcome of negligence claims. This article covers:

• The distinction between pure and modified comparative negligence.
• How comparative negligence reduces or bars recovery.
• The effect of comparative negligence in cases with multiple defendants.
• The relationship between comparative negligence and other defenses (e.g., assumption of risk, last clear chance).
• How comparative negligence interacts with intentional torts and strict liability.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a jurisdiction following pure comparative negligence, a plaintiff is found 80% at fault and the defendant 20%. The plaintiff’s damages are 100,000.Howmuchcantheplaintiffrecover?a)100,000. How much can the plaintiff recover? a) 100,000.Howmuchcantheplaintiffrecover?a)0
   1. 20,000c)20,000
   2. $100,000
2. In a modified comparative negligence jurisdiction (50% bar rule), a plaintiff is 55% at fault and the defendant 45%. What is the result?
   1. Plaintiff recovers 45% of damages
   2. Plaintiff recovers 55% of damages
   3. Plaintiff recovers nothing
   4. Plaintiff recovers full damages
3. Which of the following is true regarding comparative negligence and intentional torts?
   1. Comparative negligence always reduces recovery in intentional torts
   2. Comparative negligence is never a defense to intentional torts
   3. Comparative negligence is a partial defense to intentional torts
   4. Comparative negligence is a complete bar to intentional torts

Introduction

Comparative negligence is a defense in negligence actions that reduces a plaintiff’s recovery based on their share of fault. Unlike contributory negligence, which completely bars recovery for any fault, comparative negligence apportions damages according to each party’s responsibility. The MBE tests your ability to distinguish between the main forms of comparative negligence and to apply them to fact patterns, including those with multiple defendants or additional defenses.

Types of Comparative Negligence

There are two main forms of comparative negligence tested on the MBE: pure comparative negligence and modified comparative negligence. The key difference is whether a plaintiff who is more at fault than the defendant can recover anything.

Key Term: Pure Comparative Negligence
A system where a plaintiff’s damages are reduced by their percentage of fault, regardless of how high that percentage is.

Key Term: Modified Comparative Negligence
A system where a plaintiff’s recovery is reduced by their percentage of fault, but is barred entirely if the plaintiff’s fault reaches a certain threshold (usually 50% or 51%).

Pure Comparative Negligence

In pure comparative negligence jurisdictions, a plaintiff can recover damages even if they are mostly at fault. The court reduces the plaintiff’s damages by their percentage of fault.

Example: If a plaintiff is 90% at fault and the defendant is 10%, the plaintiff can still recover 10% of their damages.

Modified Comparative Negligence

Modified comparative negligence comes in two main versions:

• 50% Bar Rule: Plaintiff recovers only if their fault is less than or equal to 50%. If the plaintiff is more than 50% at fault, recovery is barred.
• 51% Bar Rule: Plaintiff recovers only if their fault is less than 51%. If the plaintiff is 51% or more at fault, recovery is barred.

Example: In a 50% bar jurisdiction, a plaintiff who is 51% at fault recovers nothing. If the plaintiff is exactly 50% at fault, they recover 50% of their damages.

Multiple Defendants

When more than one defendant is involved, most jurisdictions compare the plaintiff’s fault to the combined fault of all defendants. Some states compare the plaintiff’s fault to each defendant individually.

Key Term: Partial Bar
A rule in modified comparative negligence jurisdictions that bars a plaintiff’s recovery if their fault exceeds a specified percentage (50% or 51%).

Relationship to Other Defenses

Comparative negligence has replaced contributory negligence in most jurisdictions. However, some defenses interact with comparative negligence in specific ways:

• Assumption of Risk: In many comparative negligence jurisdictions, implied assumption of risk is treated as a form of comparative fault and reduces recovery.
• Last Clear Chance: Most comparative negligence jurisdictions have abolished the last clear chance doctrine.
• Intentional Torts: Comparative negligence is not a defense to intentional torts.

Key Term: Assumption of Risk
A defense where the plaintiff knowingly and voluntarily accepted a risk, which may reduce or bar recovery depending on the jurisdiction.

Worked Example 1.1

A plaintiff sues two drivers after a three-car accident. The jury finds the plaintiff 40% at fault, Driver A 30%, and Driver B 30%. The plaintiff’s damages are $90,000. The jurisdiction follows pure comparative negligence. How much can the plaintiff recover from each defendant?

Answer: The plaintiff’s total recovery is $54,000 (60$90,000). Each defendant is jointly and severally liable for the full $54,000, but may seek contribution from the other.

Worked Example 1.2

A plaintiff is injured in a slip-and-fall and is found 55% at fault, with the defendant 45% at fault. The jurisdiction follows modified comparative negligence (50% bar rule). What is the result?

Answer: The plaintiff recovers nothing. Because the plaintiff’s fault exceeds 50%, recovery is barred.

Exam Warning

In modified comparative negligence jurisdictions, be careful to check whether the bar is at 50% or 51%. A plaintiff at exactly 50% fault may recover in some states but not in others.

Revision Tip

On the MBE, unless the question specifies otherwise, assume pure comparative negligence applies.

Key Point Checklist

This article has covered the following key knowledge points:

• Comparative negligence reduces a plaintiff’s recovery based on their percentage of fault.
• Pure comparative negligence allows recovery regardless of the plaintiff’s degree of fault.
• Modified comparative negligence bars recovery if the plaintiff’s fault exceeds 50% or 51%.
• In multiple-defendant cases, the plaintiff’s fault is usually compared to the combined fault of all defendants.
• Comparative negligence is not a defense to intentional torts.
• Assumption of risk may reduce recovery as a form of comparative fault.
• The last clear chance doctrine is generally abolished in comparative negligence jurisdictions.

Key Terms and Concepts

• Pure Comparative Negligence
• Modified Comparative Negligence
• Partial Bar
• Assumption of Risk