Thursday, January 26, 2012
MBE Fast Fact: Defenses to Negligence
Though pure comparative negligence in the default rule on the MBE, it's important to note the differences between pure comparative, partial comparative, and contributory negligence, as the question might require you to apply anything other than pure comparative. Contributory negligence completely bars plaintiff's right to recover for an action in negligence (provided that no exception to the defense applies). In other words, if plaintiff is 1% at fault, and defendant is 99% at fault, plaintiff recovers nothing. Partial comparative negligence (also known as modified comparative negligence) provides the plaintiff with an opportunity to recover, provided the plaintiff is not more than 50% at fault. Pure comparative negligence, on the other hand (and, again, this is the default rule on the MBE), allows plaintiff to recover regardless as to the percentage of fault attributed to the plaintiff. So, the plaintiff recovers even if the plaintiff is 90% at fault. Plaintiff can recover 10% for his injuries, though, of course, the opposing party can counter-claim for 90%.