D was driving his truck down the highway when P pulled out of a truck stop and was hit by D.
Both P and D had been drinking that night. P's alcohol level was .17.
D was driving in excess of the speed limit.
TN followed contributory negligence up to this point.
Trial court found P and D equally liable and found for the D.
TN Supreme Court changed the rule of law and remanded.
Should TN abandon contributory negligence in favor of a comparative negligence scheme?
TN adopts comparative negligence. Ps may recover as long as the P's negligence remains less than the D's negligence. P's damages are to be reduced in proportion to the percentage of the total negligence attributable to the P.
The rule of contributory negligence is outmoded and unjust.
There are two main types of comparative negligence…
Pure - P can recover in all situations, damage is reduced by the amount of fault attributable to him.
Modified (50%) - P can recover as long as his fault is less than or equal to D's fault.
Modified (49%) - P can recover as long as his fault is less than D's fault.
TN adopts the 49% Modified scheme.
In cases of multiple Ds, P will be entitled to recover as long as P's fault is less than the combined fault of all Ds.
Ds can allege that non-parties should bear some percentage of the blame.