Torts Question Forum

[splittermcsplit88]

Contributory negligence - minority

Comparative negligence - majority

but, which one is common law?

[Davidbentley]

Contributory Negligence Was the old common law. Most states have moved onto comparative negligence. Of those that have, some have had statutes, and some have had common law changes. Generally, Common law comparative states have pure comparative regimes, and statutory states have modified regimes.

[gdane]

Contributory Negligence Was the old common law. Most states have moved onto comparative negligence. Of those that have, some have had statutes, and some have had common law changes. Generally, Common law comparative states have pure comparative regimes, and statutory states have modified regimes.

This gentleman is correct. On an exam, unless specifically told that you're in a jurisdiction with a specific regime, argue damages from both a contributory and comparative point of view. That should get you some points.

[005618502]

Contributory Negligence Was the old common law. Most states have moved onto comparative negligence. Of those that have, some have had statutes, and some have had common law changes. Generally, Common law comparative states have pure comparative regimes, and statutory states have modified regimes.

This gentleman is correct. On an exam, unless specifically told that you're in a jurisdiction with a specific regime, argue damages from both a contributory and comparative point of view. That should get you some points.

+1 to this. My professor told us many times to only use comparative. So obviously if they say just do that... but you could still throw in a "since the law has moved away from contributory negligence to comparative negligence, the P will still be able to recover a portion based on his fault level decided by the trier of fact" etc...

If it was covered in class, as I am sure both of these will be, it cant hurt to mention both.