Negligence - Various forms of comparative negligence

Learning Outcomes

This article explains comparative negligence, including:

• Distinguishing pure and modified comparative negligence systems, with emphasis on how 50% and 51% bar rules operate and how exam questions signal which version applies.
• Calculating a plaintiff’s net recovery by assigning fault percentages, applying the appropriate bar rule, and converting gross damages into exam-ready numerical answers.
• Comparing a plaintiff’s fault to the combined versus individual fault of multiple defendants, and understanding how this affects apportionment, contribution, and joint and several liability on the MBE.
• Identifying when comparative negligence replaces or modifies other defenses, such as contributory negligence, implied assumption of risk, and last clear chance, and knowing which doctrines are usually abolished in comparative-fault jurisdictions.
• Evaluating how comparative negligence interacts with strict liability and intentional torts, including the limited circumstances in which a plaintiff’s negligent or risk-taking conduct can reduce recovery for strict liability claims.
• Reading fact patterns to spot common MBE traps involving mislabeled jurisdictions, hidden assumption-of-risk facts, misplaced last-clear-chance arguments, and incorrect statements about the effect of res ipsa loquitur or negligence per se.
• Prioritizing default comparative-negligence assumptions when the bar exam question is silent, and recognizing when the question explicitly overrides those defaults with a different fault regime.

MBE Syllabus

For the MBE, you are required to understand comparative negligence within the broader negligence topic, with a focus on the following syllabus points:

• The distinction between pure and modified comparative negligence.
• How comparative negligence reduces or bars recovery.
• How courts compare a plaintiff’s fault with that of one or multiple defendants.
• The relationship between comparative negligence and other defenses (contributory negligence, assumption of risk, last clear chance).
• How comparative negligence interacts with strict liability and intentional torts.
• Default assumptions about comparative negligence on MBE questions.

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
4. In a modified comparative negligence (51% bar) jurisdiction, a plaintiff is 50% at fault and one defendant is 50% at fault. The plaintiff’s damages are 200,000.Howmuchcantheplaintiffrecover(ignoringjointandseveralliabilityissues)?a)200,000. How much can the plaintiff recover (ignoring joint and several liability issues)? a) 200,000.Howmuchcantheplaintiffrecover(ignoringjointandseveralliabilityissues)?a)0
   1. 50,000c)50,000
   2. $200,000
5. In a pure comparative negligence jurisdiction, a plaintiff knowingly rides with a visibly drunk driver and is not wearing a seatbelt. The driver is 70% at fault; the plaintiff is 30% at fault. Which statement is most accurate?
   1. Plaintiff is completely barred by assumption of risk
   2. Plaintiff’s damages are reduced by 30%
   3. Plaintiff’s damages are reduced by 70%
   4. Plaintiff recovers full damages because the driver was more negligent

Introduction

Comparative negligence is a defense to negligence actions that reduces a plaintiff’s recovery based on the plaintiff’s share of fault. It is the modern alternative to contributory negligence, which completely bars recovery if the plaintiff was even slightly negligent.

Key Term: Comparative Negligence
A system under which a plaintiff’s damages are reduced in proportion to the plaintiff’s percentage of fault, rather than being completely barred by any fault.

Key Term: Contributory Negligence
A minority rule under which any negligence by the plaintiff that contributes to the injury—even 1%—is a complete bar to recovery.

Most U.S. jurisdictions now follow some form of comparative negligence. The MBE expects you to know how different comparative systems operate, how to calculate a plaintiff’s recovery, and how these rules interact with other doctrines such as assumption of risk, last clear chance, strict liability, and intentional torts.

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 question is whether a plaintiff more at fault than the defendant can recover anything.

Key Term: Pure Comparative Negligence
A system where a plaintiff’s damages are reduced by the plaintiff’s 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 the plaintiff’s percentage of fault, but is barred entirely once the plaintiff’s fault reaches a specified threshold (usually 50% or 51%).

Key Term: Partial Bar
The rule in modified comparative negligence jurisdictions that completely bars recovery when the plaintiff’s fault reaches or exceeds the jurisdiction’s threshold.

In every comparative negligence system, the plaintiff’s own negligence must still be a factual and proximate cause of the injury. A mere statutory violation that plays no causal role does not count as comparative negligence.

Pure Comparative Negligence

In pure comparative negligence jurisdictions, a plaintiff may recover even if the plaintiff is mostly at fault—even 99%—so long as some negligence by the defendant contributed to the injury.

• The plaintiff’s total damages are calculated.
• The fact-finder assigns percentages of fault to each party.
• The plaintiff’s gross damages are reduced by the plaintiff’s percentage of fault.

Example: If the plaintiff is 90% at fault and the defendant is 10% at fault, the plaintiff may still recover 10% of the plaintiff’s damages.

Mathematically:

• Plaintiff’s net recovery = Plaintiff’s total damages × (1 − plaintiff’s % of fault).

Modified Comparative Negligence

Modified comparative negligence retains the idea of proportional reduction but imposes a cutoff. Two main versions are tested:

• 50% Bar Rule: Plaintiff recovers only if the plaintiff’s fault is not greater than the defendant’s (≤ 50%). If the plaintiff’s fault is more than 50%, recovery is barred.
• 51% Bar Rule: Plaintiff recovers only if the plaintiff’s fault is less than the defendant’s (< 51%). If the plaintiff’s fault is 51% or more, recovery is barred.

The treatment of a plaintiff who is exactly 50% at fault differs:

• In many 50% bar jurisdictions, a plaintiff at 50% fault may still recover 50% of damages.
• In many 51% bar jurisdictions, the same plaintiff would recover 50% as well, because the bar applies only when the plaintiff’s fault is more than 50%.

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

Multiple Defendants

Comparative negligence becomes more complex when more than one defendant is involved. Two questions arise:

1. How is the plaintiff’s negligence compared to the defendants’ negligence?
2. How are damages allocated among multiple negligent defendants?

Most jurisdictions compare the plaintiff’s fault to the combined fault of all defendants, not to each defendant individually.

• If the plaintiff’s percentage of fault exceeds the combined fault of all defendants in a modified comparative negligence jurisdiction, the plaintiff is barred.
• Once the plaintiff’s net recovery is determined, many jurisdictions then apportion that net amount among defendants in proportion to their individual percentages of fault.

Some states, however, compare the plaintiff’s fault separately against each defendant in modified systems. On the MBE, unless a question clearly says otherwise, you may assume:

• The plaintiff’s percentage of fault is measured against the aggregate fault of all defendants.
• Each defendant is responsible for the portion of damages equal to that defendant’s percentage of fault, subject to any joint and several liability rules supplied in the question.

Key Term: Joint and Several Liability
A rule under which each of multiple defendants is liable to the plaintiff for the full amount of the plaintiff’s recoverable damages, allowing the plaintiff to collect all from one defendant, who may then seek contribution from others.

Relationship to Other Defenses

Comparative negligence largely replaces contributory negligence but interacts with several other doctrines.

Assumption of Risk

Key Term: Assumption of Risk
A defense where the plaintiff knowingly and voluntarily encounters a risk, which may reduce or bar recovery depending on the jurisdiction and whether it is express or implied.

Key Term: Implied Assumption of Risk
A plaintiff’s conduct that shows voluntary exposure to a known risk, even without an express written or oral waiver.

• Express assumption of risk (e.g., signing a clear waiver) is usually treated as a separate, complete defense if valid and not contrary to public policy.
• Implied assumption of risk is often folded into the comparative negligence analysis. The plaintiff’s decision to confront a known danger is treated as part of the plaintiff’s comparative fault and reduces recovery rather than barring it altogether.

On the MBE, when a jurisdiction is described as comparative negligence, you should usually treat implied assumption of risk as merged into comparative negligence, unless the question treats express assumption of risk as a separate, complete bar.

Last Clear Chance

Key Term: Last Clear Chance
A doctrine in contributory negligence jurisdictions that allows a negligent plaintiff to recover if the defendant had the final opportunity to avoid the harm but failed to do so.

Last clear chance is primarily a doctrine from contributory negligence systems, where any negligence by the plaintiff would otherwise be a complete bar. In comparative negligence jurisdictions:

• The last clear chance doctrine is usually abolished.
• The fact that a defendant had the last opportunity to avoid the accident may still influence the percentage of fault assigned, but it does not operate as a separate rule.

A common MBE trap is an answer choice stating that “last clear chance applies in a comparative negligence jurisdiction.” That is almost always incorrect unless the question explicitly retains the doctrine.

Res Ipsa Loquitur and Comparative Negligence

The adoption of comparative negligence does not abolish other negligence doctrines such as res ipsa loquitur.

• Res ipsa is an evidentiary doctrine used to establish breach and causation, not a defense.
• In a comparative negligence jurisdiction, res ipsa can coexist with comparative negligence: the defendant’s negligence may be inferred from the nature of the accident, and the plaintiff’s comparative negligence may still reduce recovery.

Any answer choice suggesting that res ipsa has been abolished because the jurisdiction adopted comparative negligence is incorrect.

Negligence Per Se

Comparative negligence also interacts with negligence per se:

• If the plaintiff violates a safety statute, that violation may constitute negligence per se on the plaintiff’s part.
• The plaintiff’s statutory violation must still be a factual and proximate cause of the injury before it reduces the plaintiff’s recovery under comparative negligence.
• If the violation did not cause the accident, it does not count toward the plaintiff’s percentage of fault.

Comparative Negligence, Strict Liability, and Intentional Torts

The MBE also tests how comparative negligence interacts with different types of tort liability.

Exam rule: Unless stated otherwise, assume comparative negligence is not a defense to intentional torts, and only limitedly affects strict liability.

• Intentional torts (e.g., battery, assault): The defendant’s intentional wrongdoing is not mitigated by the plaintiff’s negligence. Comparative negligence is not a defense.
• Strict liability (e.g., abnormally dangerous activities, strict products liability): In many comparative-fault jurisdictions, a plaintiff’s ordinary negligence (such as failure to discover a defect) does not bar strict liability, but knowing and unreasonable conduct by the plaintiff (unreasonable assumption of a known risk or misuse of a product) can reduce recovery under comparative negligence principles.

The exam will usually signal when comparative fault is being applied to strict liability. Focus on whether the plaintiff’s conduct is ordinary inattention (often irrelevant) or deliberate confrontation of a known danger (often treated as comparative fault).

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 reduced by the plaintiff’s 40% fault.

- Net recovery = $90,000 × (1 − 0.40) =$54,000.
If the jurisdiction retains joint and several liability, each defendant is potentially liable to the plaintiff for the full $54,000, although as between themselves they should bear$27,000 each (30%/60% of the net loss). A defendant who pays more than that 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:
Because the plaintiff’s fault (55%) is greater than 50%, recovery is barred. The plaintiff recovers nothing.

Worked Example 1.3

In a modified comparative negligence jurisdiction using a 51% bar rule, a plaintiff and defendant are each found 50% at fault. The plaintiff’s total damages are $200,000. How much does the plaintiff recover?

Answer:
Under a 51% bar rule, the plaintiff is barred only if the plaintiff’s fault is more than 50%. At 50% fault, the plaintiff may recover:

Net recovery = $200,000 × (1 − 0.50) =$100,000.

Worked Example 1.4

In a modified 50% bar jurisdiction that compares the plaintiff’s fault to the combined fault of all defendants, the jury finds: Plaintiff 45%, Defendant 1 (D1) 35%, Defendant 2 (D2) 20%. Plaintiff’s damages are $100,000. What happens?

Answer:
Combined defendant fault = 35% + 20% = 55%.
Plaintiff’s fault (45%) is less than the combined fault of all defendants (55%), so recovery is allowed and reduced by 45%.

- Net recovery = $100,000 × (1 − 0.45) =$55,000.
Apportionment among defendants (based on their shares of the defendants’ total fault): - D1: 35/55 of $55,000 ≈$35,000. - D2: 20/55 of $55,000 ≈$20,000.
If joint and several liability applies, the plaintiff may collect the full $55,000 from either defendant, who can then seek contribution from the other.

Worked Example 1.5

A company stores explosives. A neighbor enters the storage area despite large warning signs and lights a cigarette near the explosives, which then detonate and injure the neighbor. In a pure comparative negligence jurisdiction that applies comparative fault to strict liability, the jury assigns 60% fault to the company and 40% fault to the neighbor. The neighbor’s damages are $500,000. How much does the neighbor recover?

Answer:
Strict liability applies to the company’s abnormally dangerous activity, but the neighbor’s knowing and unreasonable exposure to the risk counts as comparative negligence.

- Net recovery = $500,000 × (1 − 0.40) =$300,000.

Worked Example 1.6

A spectator attends a car race with large signs warning of flying debris. The spectator sits in a designated safe area but is injured by debris when the race operator negligently fails to install required barriers. The jurisdiction follows pure comparative negligence and treats implied assumption of risk as comparative fault. The jury finds the operator 90% at fault and the spectator 10% at fault. Spectator’s damages are $200,000. What is the result?

Answer:
The spectator’s decision to attend the race despite general dangers is treated as implied assumption of risk and folded into comparative negligence.

- Net recovery = $200,000 × (1 − 0.10) =$180,000.
There is no complete bar; the spectator’s conduct only reduces recovery.

Exam Warning

In modified comparative negligence jurisdictions, always check whether the bar is at 50% or 51%. A plaintiff at exactly 50% fault may recover in some states but not in others. Also, in comparative negligence jurisdictions, do not apply last clear chance or treat res ipsa loquitur as abolished; both are common MBE traps.

Revision Tip

On the MBE, unless the question specifies otherwise, assume pure comparative negligence applies. The exam will tell you if the jurisdiction follows contributory negligence or a specific modified comparative negligence rule.

Key Point Checklist

This article has covered the following key knowledge points:

• Comparative negligence reduces a plaintiff’s recovery in proportion to the plaintiff’s percentage of fault; the plaintiff’s negligence must still be a legal cause of the injury.
• Pure comparative negligence allows recovery regardless of how high the plaintiff’s percentage of fault is.
• Modified comparative negligence (50% or 51% bar) completely bars recovery once the plaintiff’s fault reaches or exceeds the jurisdiction’s threshold.
• In multiple-defendant cases, the plaintiff’s fault is usually compared to the combined fault of all defendants; the plaintiff’s net recovery is then apportioned among defendants according to their percentages of fault.
• Joint and several liability, if applicable, affects from whom the plaintiff may collect, but not the plaintiff’s total net recovery under comparative negligence.
• Express assumption of risk may still operate as a complete bar; implied assumption of risk is often merged into comparative negligence and reduces recovery.
• The last clear chance doctrine is generally abolished in comparative negligence jurisdictions; its function is supplanted by apportionment of fault.
• Comparative negligence does not apply to intentional torts and only partially affects strict liability, typically when the plaintiff knowingly and unreasonably encounters a known danger.
• Adoption of comparative negligence does not abolish res ipsa loquitur or negligence per se; they still operate to establish breach and causation, while comparative negligence addresses allocation of fault and damages.

Key Terms and Concepts

• Comparative Negligence
• Contributory Negligence
• Pure Comparative Negligence
• Modified Comparative Negligence
• Partial Bar
• Assumption of Risk
• Implied Assumption of Risk
• Last Clear Chance
• Joint and Several Liability