Defenses to Negligence

The default defense to negligence on the MBE is pure comparative negligence. But often enough the questions will direct you to apply a different standard, so it's important to understand how the analysis changes when the standard changes. Three defenses you'll want to know are pure comparative negligence, modified (or partial) comparative negligence, and contributory negligence.

Let's assume the following fact situation in discussing the analysis of each. Plaintiff ("P") is injured by 3 defendants "X," "Y," and "Z." The fault (in dollar amount) of plaintiff's injury is allocated as follows:

P's fault is valued at $50,000

X's fault is valued at $30,000

Y's fault is valued at $20,000

Z's fault is valued at $10,000

Total: $110,000


Contributory Negligence: If directed in any given question to apply contributory negligence, the analysis is very straight-forward. If plaintiff is determined to have been at fault (by even the slightest amount), then plaintiff is prevented from recovering anything from any other defendant. In our example, plaintiff is $50,000 at fault, so plaintiff will recover nothing. Note that plaintiff can then raise his own defense of the "last clear chance doctrine," claiming that defendant(s) had the last clear chance to avoid the act that caused the injury. If proven, then the fact that plaintiff was contributorily negligent will not entirely prevent plaintiff from recovering.

Modified (partial) comparative negligence: Here the analysis changes. Plaintiff can recover provided that plaintiff was less than 50% at fault when taking the total dollar amount of damages into account. Here, plaintiff was determined to have been $50,000 at fault, and total damages were valued at $110,000. Therefore plaintiff was 45% percent at fault (50,000/110,000), and because that is less than 50%, plaintiff will recover for his injuries. In determining the amount of recovery, subtract the amount of damages allocated to plaintiff ($50,000) from the total amount ($110,000). Plaintiff will therefore recover $60,000. Plaintiff can recover this amount from either x, y, or z (as per the default rule of joint and several liability), and then each defendant will have a right of contribution from the other defendants if any defendant pays an amount that exceeds his own fault. So, for example, if plaintiff recovers the $60,000 from z, z will have a right of contribution of $50,000 from x and y.

Pure Comparative Negligence: This is the standard to apply if you are not told to apply otherwise. The analysis is the same as in modified comparative negligence, except that under pure comparative negligence, plaintiff can recover even if plaintiff is determined to have been more than 50% at fault. So, assume that instead of damages valued at $110,000, the total damages were valued at $90,000 and further assume that plaintiff was still determined to have contributed $50,000 to his own injuries. In that case plaintiff would be deemed 56% at fault (50,000/90,000). Even so, plaintiff would be able to recover for the remaining fault allocated to defendant(s). In this example, plaintiff would be able to recover $40,000, and once again, assuming the default rule of joint and several liability applies, plaintiff may choose among x, y, or z, when recovering that amount, and then each defendant will have a right of contribution against the others.


**Note:: If told not to apply joint and several liability, the analysis changes slightly. Plaintiff can no longer recover the full amount from any given defendant, and can only recover an amount from a defendant equal to that defendant's fault.