Tort Law Discussion

Contributory and Comparative Negligence

HYPOTHETICAL: Denise comes to a complete stop at a four-way intersection. Before proceeding into the intersection, she looks to her left but does not look to her right. As a result, she fails to see Donald, who is driving so fast he cannot stop in time to avoid hitting Denise. Donald broadsides Denise’s vehicle, causing considerable damage to the vehicle and serious injuries to Denise.

  1. Based on this scenario, answer the following questions.
    1. If Denise lives in a contributory-negligence state, will she be able to recover for her injuries?
    2. What argument could Denise make that would allow her to recover despite her own negligence?
  2. Based on this scenario, answer the following questions.
    1. If Denise lived in a comparative-negligence state, what percentage of fault would you assign Denise? How would that affect her recovery in a state that has a comparative-negligence standard?
    2. Suppose a jury finds that both Donald and Denise are 50 percent responsible for Denise’s injuries. What problems might this create in a state that has not adopted a pure comparative-negligence standard?
    3. Suppose Denise is not able to see through the right window because her friend’s St. Bernard took that moment to jump into the front seat. Arguably, her friend’s failure to control her dog contributed to the accident, but Denise opts not to include her friend in the lawsuit against Donald. What problem does this create at trial?
  3. If your state uses comparative negligence theory, what is the format it uses? If your state is a contributory negligence state, choose one of the states near you and explain the comparative negligence it uses.
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