Contributory negligence, last clear chance, and comparative fault variants

Black-letter propositions

1. 01

   Under contributory negligence, a plaintiff who was negligent at all recovers nothing, even if only 1 percent at fault; Cornell lists Alabama, Maryland, North Carolina, Virginia and the District of Columbia as the jurisdictions that still follow it.

2. 02

   Under last clear chance, a negligent plaintiff may still recover in a contributory negligence jurisdiction if the defendant was the only party able to avoid the harm by reasonable means and failed to do so.

3. 03

   Pure comparative fault reduces the plaintiff's recovery by her percentage of fault and lets her recover even when she is more at fault than the defendant; New York's CPLR 1411 provides that culpable conduct attributable to the claimant does not bar recovery but diminishes damages proportionally.

4. 04

   Modified comparative fault bars a plaintiff whose fault reaches a threshold: under a 50 percent bar she recovers only if her fault is below 50 percent, and under a 51 percent bar she recovers if her fault is not greater than the defendant's, as in New Jersey's statute, which compares her negligence with each defendant's or their combined negligence.

5. 05

   Some statutes combine comparative fault with limits on joint liability: New Jersey lets a plaintiff collect the full amount from a defendant found 60 percent or more responsible and only that defendant's percentage from any defendant less than 60 percent responsible, while Florida enters judgment on each party's percentage of fault, bars a plaintiff more than 50 percent at fault in most negligence actions, and does not use joint and several liability.

6. 06

   Assumption of risk may be express, usually a waiver, or implied; primary assumption of risk means the defendant owed no duty, as in ordinary sport, and secondary assumption of risk is analyzed as comparative fault, and many states have merged implied assumption of risk into comparative fault.

Use this attack sequence under time

Common wrong turns

• Last clear chance is an exception to contributory negligence, and comparative fault regimes do not need it.
• Under a 50 percent bar a plaintiff who is equally at fault recovers nothing, while under a 51 percent bar she recovers half.
• In a statute that compares the plaintiff with the defendants' combined negligence, do not compare her fault with each defendant separately.

Worked example

A driver, 30 percent at fault, is injured in a collision with a car whose driver is 70 percent at fault, and damages are $100,000.

Practice this topic

Contributory negligence and last clear chance

Cornell's Wex entry says contributory negligence is a common law rule that bars a plaintiff from recovering if she was also negligent in causing the harm. The degree of fault is irrelevant, so a plaintiff who was 1 percent negligent recovers nothing from a defendant 99 percent negligent. Most jurisdictions have replaced it with comparative negligence, and Wex lists Maryland, Virginia, Alabama and North Carolina as still following it, with the District of Columbia.

Wex's entry on last clear chance describes the doctrine as considering which party had the last opportunity to avoid the accident. A negligent plaintiff may recover if the defendant had the last clear chance, and in contributory negligence states it is often seen as an exception. Wex illustrates it with Davies v. Mann, in which a plaintiff negligently tied his donkey near a road, and the defendant's wagon, traveling fast, killed it.

Pure and modified comparative fault

Wex explains that under pure comparative negligence a plaintiff may recover damages for the 1 percent for which she is not at fault even when she is 99 percent at fault, and under modified comparative negligence a plaintiff is barred at a threshold, either 50 percent or 51 percent. New York's CPLR 1411 states the pure rule. Culpable conduct attributable to the claimant, including contributory negligence or assumption of risk, does not bar recovery, and damages are diminished in the proportion the claimant's conduct bears to the conduct that caused the damages.

New Jersey's statute, N.J.S.A. 2A:15-5.1, provides that contributory negligence does not bar recovery if the plaintiff's negligence was not greater than the negligence of the person against whom recovery is sought, or the combined negligence of those persons. Damages are diminished by the plaintiff's percentage. Florida's statute, section 768.81, provides in subsection (6) that a party found greater than 50 percent at fault for her own harm may not recover in a negligence action, except in medical negligence actions under chapter 766.

Comparative fault and liability among defendants

New Jersey adds a joint liability rule in N.J.S.A. 2A:15-5.3. The plaintiff may recover the full amount of the damages from any party found 60 percent or more responsible for the total damages, and only that party's percentage from any party found less than 60 percent responsible. Florida's section 768.81(3) says the court shall enter judgment against each party on the basis of that party's percentage of fault and not on the basis of joint and several liability.

Wex describes assumption of risk as express, usually through a waiver, or implied. Under primary assumption of risk the defendant has no duty of due care, as in sporting events, and secondary assumption of risk is evaluated as if it were comparative negligence. Many jurisdictions have merged implied assumption of risk into comparative negligence, and Wex notes that Oregon abolished the defense by statute.

Frequently asked questions