Comparative Fault (Nevada modified)
Nevada threw out the old all-or-nothing rule (contributory negligence, where a plaintiff even 1 percent at fault recovered nothing) and replaced it with a partial, or modified
12. Comparative Fault
Most jurisdictions have replaced the common law rule of contributory negligence, where fault of the plaintiff barred recovery, with comparative fault rules. The Nevada FLE tests knowledge of Nevada’s partial comparative fault statute, which allows recovery so long as the plaintiff’s own negligence is not greater than that of the defendant or that of the combined negligence of multiple defendants. Nev. Rev. Stat. § 41.141; Joynt v. California Hotel & Casino, 108 Nev. 539, 544, 835 P.2d 799, 802 (1992). Many states have adopted this version of comparative fault.
- Comparative fault rules allow some plaintiffs to recover even if their own negligence contributed to their injury.
- The version of comparative fault tested on the Nevada FLE permits a plaintiff to recover when their own negligence is not greater than the negligence of the defendant or of the combined negligence of multiple defendants. In other words, plaintiffs may recover if the factfinder sets their negligence at 50% or less. When a lawsuit involves multiple defendants, the plaintiff’s fault is compared to the combined fault of all defendants, not to each defendant individually. Thus, a plaintiff who is 40% at fault may recover against defendants who are each 30% at fault.
- The Nevada FLE does not test principles of joint and several liability, which is now limited by statutes in many states (including Nevada).
Nevada uses modified comparative fault: a partly-at-fault plaintiff recovers, with damages reduced by their own share, only if their fault is not greater than the defendant's or the combined defendants'. Above 50 percent, recovery is zero.
Nevada threw out the old all-or-nothing rule (contributory negligence, where a plaintiff even 1 percent at fault recovered nothing) and replaced it with a partial, or modified, comparative-fault rule. A partly-at-fault plaintiff can still recover, but only up to a ceiling: if the plaintiff is more than half to blame, recovery drops to zero. At 50 percent or below, the plaintiff recovers, with damages reduced by their own percentage of fault.
The one twist worth memorizing is the multiple-defendant rule: you do not test the plaintiff against each defendant separately, you test the plaintiff against all the defendants added together. That is why a 40-percent-at-fault plaintiff can recover from two defendants who are each only 30 percent at fault: 40 is not greater than 60.
The standard is "not greater than," not "less than": a plaintiff at exactly 50 percent still recovers. And do not slip back into the abolished contributory rule that any plaintiff fault bars recovery.
"Not greater than"
= 50 percent or less wins.
Tie goes to the plaintiff.
A 50/50 plaintiff recovers, because 50 is not greater than 50.
The bar starts at 51 percent.
"Gang them up." Always sum the defendants before you compare.
Adding defendants helps the plaintiff, because it raises the number the plaintiff has to stay at or below.
One-line cue card: Sum the defense.
Plaintiff 50 or less of the whole?
Recover, minus their share.
Plaintiff 51 or more?
Zero.
A cyclist is hit at an intersection. The jury sets total damages at $200,000 and allocates fault: cyclist 45 percent, a delivery van 35 percent, the city (bad signal timing) 20 percent.
Make the cyclist 55 percent and the two defendants 30 percent and 15 percent (combined 45 percent).
An option compares the plaintiff to one defendant's share instead of the combined defense.
Sum the defendants first, then compare."Less than 50 percent" swapped for "not greater than 50 percent," or a reduced award where recovery is actually barred.
The line is not greater than: 50 recovers, 51 does not; above the line there is no reduced award."Any fault by the plaintiff bars recovery" states the abolished all-or-nothing rule.
Nevada is modified comparative, not contributory.An option turns on joint and several liability or a damage cap.
Neither is tested on this concept; ignore it.the stem hands you a numeric fault split among a plaintiff and one or more defendants ("the jury allocated fault 55 percent / 10 percent / 35 percent") and the call asks whether or how much the plaintiff recovers.
The instant you see allocated percentages with the plaintiff among them, run the three-step move from Layer 3.
If there are multiple defendants, the question is almost certainly testing the combined-comparison rule, so sum before you compare.
A pedestrian was injured crossing against a signal. A jury found her 60 percent at fault for her injuries and the driver who struck her 40 percent at fault, and set total damages at $100,000. The case is governed by Nevada's comparative fault statute.
How much may the pedestrian recover from the driver?
A cyclist was injured in a collision. A jury found the cyclist 40 percent at fault and allocated the rest of the fault to two drivers, 35 percent to one and 25 percent to the other. Total damages were $200,000. The case is governed by Nevada's comparative fault statute.
May the cyclist recover from the drivers?
A shopper slipped on a wet floor and was injured. A jury set the shopper's total damages at $400,000 and allocated fault 55 percent to the shopper, 30 percent to the store, and 15 percent to the cleaning company. The case is governed by Nevada's comparative fault statute.
What is the maximum the shopper can recover from the store?
A homeowner was injured when a contractor's scaffold collapsed during a repair. A jury set the homeowner's total damages at $90,000 and allocated fault 30 percent to the homeowner and 70 percent to the contractor. The case is governed by Nevada's comparative fault statute.
How much may the homeowner recover from the contractor?
A diner was injured when a chair broke at a restaurant. A jury allocated fault 50 percent to the diner and 50 percent to the restaurant. The case is governed by Nevada's comparative fault statute.
May the diner recover from the restaurant?
A tenant was injured when a balcony railing gave way. A jury allocated fault 50 percent to the tenant, 30 percent to the building owner, and 20 percent to the railing installer. The case is governed by Nevada's comparative fault statute.
May the tenant recover from the defendants?