Torts: Negligence

Question:

Hi Sean, I am an Irish national, studying for the New York Bar Exam in July 2010. Already I have completed contracts and torts using Bar/Bri.My question; what is the best way to break down comparative negligence, pure comparative negligence and contributory negligence. Thses questions always seem to trip me up.

Thanks.

Response:

The best way to break this down is by understanding the differences, and how those differences might affect the analysis. First, keep in mind that on the MBE, you are to assume that pure comparative negligence applies, so I'll start there.

In a pure comparative negligence jurisdiction, the Plaintiff will recover no matter how great his negligence. In other words, if Plaintiff is determined to have been 80% at fault, he can still recover for the amount that Defendant was at fault.

Now let's look at a modified comparative negligence jurisdiction. Here, if Plaintiff is 80% at fault he will recover nothing. Plaintiff must have been less than 50% at fault to recover from Defendant. So, if Plaintiff is 40% at fault, he will recover from Defendant.

In a contributory negligence jurisdiction the result would differ. If Plaintiff is 40% at fault, he will recover nothing. In fact, if Plaintiff is 1% at fault, he will recover nothing. Plaintiff must not have been at fault to recover against Defendant.

So, in summary, in pure comparative, the fault of Plaintiff will not bar his recovery. In modified comparative, the fault will bar recovery, provided that fault is 50% or greater. In contributory, the fault will bar recovery in all situations.