defenses of C/N and C/F

Question 1

CONTRIBUTORY NEGLIGENCE

Answer 1

-a common law doctrine
has the same elements as negligence. As an affirmative defense, its analysis pertains to the plaintiff, with the burden of proof on the defendant

Question 2

COMPARATIVE FAULT

Answer 2

works the same way, but sends the question of percentage-fault allocation to the jury rather than effecting a complete defense

Question 3

PURE COMPARATIVE FAULT

Answer 3

plaintiff’s recovery is reduced in proportion to plaintiff’s fault

Question 4

MODIFIED COMPARATIVE FAULT

Answer 4

plaintiff’s recovery is reduced in proportion to plaintiff’s fault, but plaintiff may not recover anything from a defendant bearing less fault than plaintiff

Question 5

standard of care is tested

Answer 5

objectively (unlike AOR).

Because contributory negligence calls for a “negligence” analysis

Question 6

C/N as a complete defense

Answer 6

it is superseded by comparative fault in the 46 states where comparative fault has been adopted. Note that some jurisdictions (especially foreign common law jurisdictions) may still refer to “contributory negligence” or “contributory fault” to refer to comparative fault after the adoption of such a system. The specifics of how comparative fault works in a jurisdiction always depend on analysis of the adopting instruments, whether statutory or case law.

Question 7

C/F as defense to RECKLESSNESS

Answer 7

In jurisdictions that recognized contributory fault as a defense to recklessness, the comparative fault system typically supersedes.

Question 8

MASS

Answer 8

has adopted modified comparative fault by statute, MA ST 231 s 85, abolishing common law contributory negligence and assumption of risk. A plaintiff may recover with up to and including 50% of fault as compared with the fault of all defendants combined. Plaintiff may not recover with fault in excess of all defendants’ fault (greater than 50%).