As explained in your reading, if a plaintiff meets all of the requirements for a negligence claim, it does not necessarily mean that the plaintiff will automatically win their lawsuit. There are certain defenses available to the defendant, which are state-specific. Some of those defenses are: (1) contributory negligence; (2) "pure" comparative negligence; and (3) "modified" comparative negligence (explained on pages 150-52 of Text). If a defendant pleads one of these defenses in the answer, the fact finder (judge or jury depending on the case) at the end of the trial will first determine the amount of money that the plaintiff has been damaged. If the plaintiff did suffer damages, the fact finder then will assign percentages of negligence to both the plaintiff and defendant to determine who was the cause of that damage. If the plaintiff is assigned a percentage of negligence (meaning that the plaintiff contributed to their own damages), then based on the specific defense utilized, the plaintiff's overall damages' amount can then be reduced. For example, in states that allow for the "contributory negligence" defense, the plaintiff recovers nothing if the plaintiff is found even 1% negligent.

First, as noted in your reading and above, "contributory negligence" can lead to some harsh results. For this part though, please make an argument as to why "contributory negligence" should still be a valid defense in a negligence action.

Second, which is more equitable in a negligence action, "modified" comparative negligence where a plaintiff recovers nothing if their negligence is equal to (50%) or greater than the defendant's negligence or "pure" comparative negligence where a plaintiff can still recover something even if they are found 99% at fault?

Lastly, the Moore v. Kitsmiller case (p. 152-53) is an example of how comparative negligence works in a real case (the plaintiff's overall recovery was reduced from $210,000 to $107,100). Do you believe that the plaintiff in that case was really 49% negligent? Why or Why not? If you were on the jury, how would you have apportioned percentages of negligence among the 3 parties? Please fully explain and defend your answers by utilizing the specific facts from the case.