Comparative/Contributory Fault

Contributory Negligence: Definition

Complete bar to recovery if Plaintiff is 1% at fault. Plaintiff owes duty to THEMSELVES to act reasonably just like Defendant does.

Exceptions to Contributory Negligence and their Effect on P’s Recovery

Last Clear Chance: D had final opportunity to avoid harm after P couldn’t. P recovers 100%.

Intentional/Reckless: D acted intentionally or recklessly. P recovers 100%.

Tiny/Remote Negligence: P’s fault was slight or remote (e.g. P fails to turn on emergency brake. D rams into P’s parked car). P recovers 100%.

Comparative Negligence

1. Definition

2. What erosion doctrines remain?

3. How many states?

1. Special verdicts with % fault allocation

2. All erosion doctrines abolished EXCEPT if D acts intentional/recklessly

3. 46 states

Under Comparative Negligence, suppose the following.

Plaintiff is 40% at fault and has experienced $100K in damages. D is 60% at fault and has experienced $50K in damages.

Go through the three jurisdictional splits on how much P and D can recover.

Pure: Damages minus own % of fault.

• If 50/50 split: both recover 50%

• Example: P recovers $60K. D recovers $20K.

Modified - Not Greater Than: If party’s fault is GREATER = barred from recovery. Otherwise like pure.

• If 50/50 split: As if pure. Both recover 50%.

• Multiple Ds: Don’t aggregate. Compare P’s fault to each D’s fault.

• Example: P recovers $60K. D recovers $0.

Not As Great As: If party’s fault is GREATER = barred from recovery. Only difference is 50/50.

• If 50/50 split: Neither recovers.

• Multiple Ds: Don’t aggregate. Compare P’s fault to each D’s fault.

• Example: P recovers $60K. D recovers $0.

What’s the only difference between 1) Modified - Not Greater Than and 2) Not As Great As?

50/50 liability. 1) Both recover 50% 2) no one recovers

We are in a Modified or Not As Great As jurisdiction. Plaintiff is 33% liable. D1, D2, and D3 are each 22% liable. Can P recover? Why?

No, because we can’t aggregate. P’s fault is greater.

We are in a Modified or Not As Great As jurisdiction. P = 30% liable and experiences $100K damages. D1 5%, D2 35%, D3 28%, D4 2% at fault.

1. Can P recover? Why?

2. How much is P maximally entitled to?

3. How much can P recover in J&S? Why?

4. How much can P recover in Pure Several Liability?

1. Yes, because P’s fault is less compared to at least one D

2. $70K

3. $70K because P’s fault was less, and in J&S, P can pick to recover from whomever

4. P will take the loss and can only recover $35K from D2 because Defendants must only pay their portion of fault

Is there comparative fault for failure to exercise pre-accident steps?

What doctrine?

Example?

Yes. Enhanced Injury Doctrine–steps that could be taken before an accident to lessen the amount of injury. Only applies to legal duties (e.g. seatbelt). No duty to be thin.

Is there comparative fault for failure to exercise post-accident steps?

What doctrine?

Example?

Yes. Mitigation / Avoidable Consequences.

If reasonable person would have treated, P can’t recover for worsened injuries. Religious objections are not an excuse.

Plaintiff ignores the lawnmower manual which described how to put the machine together. The blade flies off when Plaintiff puts it together.
1. What standard do we apply?
2. What standard if Plaintiff knows a specific blade is loose and continues using it?

Comparative fault

Assumption of risk, but question is whether P knew about the specific risk