The Supreme Court of Tennessee rejected the pure form of comparative fault and adopted a system of modified comparative fault, the "49 percent rule." So long as a plaintiff's negligence remains less than the defendant's negligence the plaintiff may recover; in such a case, the plaintiff's damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.
Plaintiff and defendant were involved in an automobile accident resulting in severe injuries to plaintiff. Based upon evidence introduced at trial establishing that plaintiff had been intoxicated at the time, the jury returned a verdict in favor of defendant, holding that plaintiff's contributory negligence completely barred plaintiff from any recovery. Plaintiff appealed. The court of appeals rejected plaintiff's arguments that the jury should have been instructed on the doctrine of comparative negligence, as it was not the law at the time, and held that the presumption of intoxication provided by Tenn. Code Ann. § 55-10-408(b) (1988) was admissible evidence in a civil case. After replacing the contributory negligence system with a comparative negligence system, the Tennessee Supreme Court remanded the case for retrial in accordance with this new system and affirmed the introduction of the evidence regarding plaintiff's intoxication as a violation of a penal statute was negligence per se in Tennessee.
Is plaintiff barred from recovering in a negligence action if he is also at fault?
In all trials where the issue of comparative fault is before a jury, the trial court shall instruct the jury on the effect of the jury's finding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defendants. The attorneys for each party shall be allowed to argue how this instruction affects a plaintiff's ability to recover.