Where contributory negligence has previously been a complete defense, it is supplanted by the doctrine of comparative negligence. In such cases contributory negligence will not bar recovery but shall reduce the total amount of the award in the proportion that the claimant's contributory negligence bears to the total negligence that caused the damages. The trier of fact must consider both negligence and causation in arriving at the proportion that negligence and causation attributable to the claimant bears to the total negligence that was a substantial factor in causing the damages.
The passenger filed an action against the driver after she was injured when the automobile in which she was a passenger was driven into the back of another vehicle. There was no question but that the cause of the accident was the driver's negligent operation of the vehicle. There was a factual dispute as to whether the passenger failed to exercise reasonable care for her own safety by riding with a person whom she knew or should have known to be too intoxicated to drive safely. The trial court refused an instruction based on the doctrine of comparative negligence and directed a verdict as to the driver's negligence and submitted the case to the jury solely on the issue of the passenger's contributory negligence. The jury found for the driver and the passenger appealed. The court of appeals affirmed.
Was the passenger contributorily negligent to her injury, thus barring any recovery?
The court concluded that contributory negligence should give way to the pure form of comparative negligence and that the pure comparative negligence doctrine should have applied to the passenger's action. The court remanded the action to the trial court for further proceedings. The court likewise noted that the pure form comparative negligence doctrine should have applied to the present case, all cases tried or retried after the date of the filing of this opinion, and all cases pending, including appeals, in which the issue had been preserved.