MBE Tip: Comparative vs Contributory Negligence

 x negligently injures y. Y sues x, but y was negligent as well:

Can y recover from x?

x: 99% fault, y: 1% fault Contributory negligence: no Partial comparative negligence: yes Pure comparative negligence: yes x: 55% fault, y: 45% fault Contributory negligence: no Partial comparative negligence: yes Pure comparative negligence: yes x: 45% fault, y: 55% fault Contributory negligence: no Partial comparative negligence: no Pure comparative negligence: yes Important Takeaways: Even the slightest bit of negligence (see example 1) will prevent plaintiff's recovery in a contributory negligence jurisdiction. Keep an eye out for the "last clear chance" rule, though, as that might provide a basis for plaintiff to recover even using contributory negligence. For comparative negligence, the important demarcation is 50%. If plaintiff's fault exceeds that (example 3) no recovery. If not (example 2) recovery. For pure comparative negligence (the default on the MBE) y will "recover" regardless of fault. See all 3 examples above. Recovery will often consist merely of deducting y's own fault from y's recovery. I've labeled the above as "partial comparative negligence" but you might see it written as "modified comparative negligence. All interchangeable.