Ark. Code Ann. § 16-64-122

Research References

Ark. L. Rev.

Note, The Arkansas Product Liability Act of 1979, 35 Ark. L. Rev. 364.

Note, Imputed Negligence Under the Arkansas Comparative Liability Statute, Exception: Stull, Adm'x v. Ragsdale, 35 Ark. L. Rev. 722.

Woods, Product Liability: Is Comparative Fault Winning the Day?, 36 Ark. L. Rev. 360.

Case Note, Rini v. Oaklawn Jockey Club: Assumption of Risk Rides Again, 41 Ark. L. Rev. 657.

Samuel T. Waddell, Comment: Examining the Evolution of Nonparty Fault Apportionment in Arkansas: Must a Defendant Pay More Than Its Fair Share?, 66 Ark. L. Rev. 485 (2013).

Cristen C. Handley, Comment: Back to the Basics: Restoring Fundamental Tort Principles by Abolishing the Professional-Rescuer's Doctrine, 68 Ark. L. Rev. 489 (2015).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Torts, 5 U. Ark. Little Rock L.J. 191.

Note, Torts — Negligence — Contributory Negligence of One Parent Is Imputed to the Other to Diminish the Latter's Recovery for the Death of a Minor Child. Stull v. Ragsdale, 273 Ark. 277, 620 S.W.2d 264, 26 A.L.R.4th 385 (1981). 5 U. Ark. Little Rock L.J. 289.

Note, Conflict of Laws — Multistate Torts — Arkansas Relies on Choice-Influencing Considerations and the “Better Rule of Law,” 10 U. Ark. Little Rock L.J. 511.

Survey — Uniform Commercial Code, 10 U. Ark. Little Rock L.J. 613.

Survey — Torts, 11 U. Ark. Little Rock L.J. 261.

Survey — Civil Procedure, 14 U. Ark. Little Rock L.J. 747.

Annual Survey of Caselaw, Tort Law, 24 U. Ark. Little Rock L. Rev. 1085.

Sizing Up a Multi-Party Tortfeasor Suit in Arkansas: A Tale of Two Laws — How Fault Is, and Should Be, Distributed, 26 U. Ark. Little Rock L. Rev. 251.

Case Notes

In General.

The court's refusal to ask the jurors whether they meant to allow no one to recover was based upon a correct understanding of the comparative negligence statute. Brown v. Keaton, 232 Ark. 12, 334 S.W.2d 676 (1960) (decision under prior law).

This section defines comparative fault, in essence, as the comparing of fault between a claiming party and the party against whom the claiming party seeks to recover. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

Construction.

While it is true that the right to contribution from a joint tortfeasor is dependent upon a finding of joint and several liability, subsection (d) does not allow the concepts and effects of contribution among joint tortfeasors to be argued to the jury; this section is clear in this respect and is not ambiguous. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

Subsection (d) is expressly limited to issues of comparative fault; if the legislature intended to allow counsel to argue issues of contribution and indemnity among joint tortfeasors, it would have so provided when it added subsection (d) to this section. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

Civil Justice Reform Act (CJRA), § 16-55-201 et seq., pertains to fault apportionment in a general way, and the Arkansas Comparative Fault Act under this section specifically defines fault and identifies whose fault can be apportioned. Because these two provisions address the same subject matter, it is reasonable to conclude that the general terms of the CJRA are intended to be subject to the specific terms of the Arkansas Comparative Fault Act. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Purpose.

The purpose of the comparative negligence statute is to distribute the total damages among those who caused them. FDIC v. Deloitte & Touche, 834 F. Supp. 1129 (E.D. Ark. 1992).

Applicability.

Fault may be compared in all actions for damages for personal injuries or wrongful death or injury to property. Little Rock Elec. Contractors v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988).

Malicious prosecution is an intentional tort and, therefore, comparative negligence does not apply. Kellerman v. Zeno, 64 Ark. App. 79, 983 S.W.2d 136 (1998).

This section did not apply to an action by a marmalade manufacturer against a jar manufacturer to recover for a business loss which occurred when it had to recall 6,000 cases of marmalade after a consumer complained that he cut his tongue on a sliver of glass in a jar of marmalade since the case did not involve an “injury to property” although the glass jars could have been said to be injured property, the real gist of the action was to recover the business loss from having to take the jars back, not merely to recover the cost of rendering the jars, as jars, nondefective. E.D. Smith & Sons v. Arkansas Glass Container Corp., 236 F.3d 920 (8th Cir. 2001).

Trial court should not have instructed the jury on comparative fault under this section in appellant's action for damages resulting from a car accident because appellee was required to yield the right of way under § 27-51-603 and appellant did not have a duty to anticipate his failure to yield. The fact that appellant allegedly admitted fault by stating that she was looking for a parking spot was irrelevant as she had no duty; rather it was appellee's duty to avoid the accident as he was backing out of a driveway onto the highway on which appellant was traveling. Bell v. Misenheimer, 102 Ark. App. 389, 285 S.W.3d 693 (2008), rev'd, 2009 Ark. 222, 308 S.W.3d 120 (2009).

Affirmative Defense.

Comparative fault is an affirmative defense. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).

Agency.

While indemnity is commonly granted where liability has been imposed on a person not because of any fault on his part but solely because of his relationship to the one at fault, this doctrine did not apply to a claim against a person since there was no employer-employee or other “agency-type” relationship on which to base imputation of liability. Missouri P. R. Co. v. Star City Gravel Co., 592 F.2d 455 (8th Cir. 1979).

Apportionment of Fault.

Where there is evidence of negligence on the part of both plaintiff and defendant, apportionment of fault under Arkansas' comparative fault statute becomes a matter solely within the province of the finder of fact. Lockett v. International Paper Co., 871 F.2d 82 (8th Cir. 1989).

The fact that one party admits negligence at trial does not preempt consideration of any negligence of another party when negligence is properly alleged and supported by evidence. Bryant v. Eifling, 301 Ark. 172, 782 S.W.2d 580 (1990).

The Arkansas comparative fault law is capable of recognizing and distributing fault between parties whose misconduct contributed to an actionable loss. FDIC v. Deloitte & Touche, 834 F. Supp. 1129 (E.D. Ark. 1992).

It was not error for the court to instruct the jury on comparative fault where there was evidence that plaintiff entered the yard despite the presence of “Beware of the Dog” signs, and that plaintiff's injuries could have been caused by her running from the dog, rather than from the dog's attack. Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997).

In an action by the owner of an officer building and a tenant against a security company arising from a fire in the building for negligence in failing to detect the fire and failing to timely contact the fire department, the owner was not entitled to recover on the basis that its negligence was less than the combined negligence of the tenant and the security company; it was improper to combine the fault of the tenant and the security company because the tenant was a co-plaintiff in the action, rather than a defendant. NationsBank, N.A. v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001).

Appellate court reversed a judgment that awarded no damages to a building owner even though the jury found that the owner was not liable and that a fire extinguisher company and plaintiff restaurant were each fifty percent (50%) liable for damages caused by the fire as, under this section, the owner's liability was to be compared to the company's liability. Yu v. Metro. Fire Extinguisher Co., 94 Ark. App. 317, 230 S.W.3d 299 (2006).

Section 16-55-202 should be interpreted as being compatible with subsection (a) of this section, which limits the apportionment of fault to an individual or entity from whom the claiming party seeks to recover damages, which includes individuals and entities that are subject to being brought into a suit pursuant to a cross or third party claim under Ark. R. Civ. P. 13, 14, but excludes nonparties who are otherwise immune from suit, including employers who are immune pursuant to § 11-9-105(a), the exclusive remedies provision of the Workers' Compensation Law, § 11-9-101 et seq.Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Assumption of Risk.

Where it is established in a products liability case that the injured person assumed the risk of injury, there can be no recovery. Dulin v. Circle F Indus., Inc., 558 F.2d 456 (8th Cir. 1977).

Because Arkansas is a comparative fault state, assumption of risk is not a complete bar to recovery but is simply a matter to be considered in deciding fault. Simmons v. Frazier, 277 Ark. 452, 642 S.W.2d 314 (1982).

In a products liability action, the jury found that the plaintiff had assumed the risk of the accident. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), superseded by statute as stated in, Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Finding of assumption of risk did not bar the plaintiff's recovery for the manufacturer's alleged negligence, since the jury also apportioned a greater percent of the responsibility for the accident to the defendant. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), superseded by statute as stated in, Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).

Where none of the forms of assumption of risk which survives the adoption of comparative fault in Arkansas is applicable to the facts of a case, an instruction on assumption of risk should not be given. Rini v. Oaklawn Jockey Club, 861 F.2d 502 (8th Cir. 1988).

On its face, this section purports to merge the defense of assumption of risk into the statutory comparative fault scheme; however, implied secondary reasonable assumption of risk and implied secondary unreasonable assumption of risk must no longer be a complete bar to recovery, but rather one element to be factored into the comparative fault analysis. Rini v. Oaklawn Jockey Club, 861 F.2d 502 (8th Cir. 1988).

The adoption of comparative fault represents a legislative judgment that a plaintiff should not be denied recovery for injuries caused by a defendant's negligence simply because the plaintiff was partially at fault, although less at fault than the defendant. Rini v. Oaklawn Jockey Club, 861 F.2d 502 (8th Cir. 1988).

A plaintiff's conduct which amounts to assumption of risk is not a complete bar to recovery, but rather is simply one element to be factored into the comparative fault analysis. Lockett v. International Paper Co., 871 F.2d 82 (8th Cir. 1989).

There was evidence to support the giving of the assumption of risk instruction where plaintiff testified he was aware of all the specific risks that led to his injury. Bonds v. Snapper Power Equip. Co., 935 F.2d 985 (8th Cir. 1991).

Instruction that referred to assumption of risk as a defense was harmless error because the other instructions made it clear that assumption of risk was an element of fault, not a complete bar to recovery. Bonds v. Snapper Power Equip. Co., 935 F.2d 985 (8th Cir. 1991).

Because a jury must compare negligence pursuant to this section, the doctrine of assumption of the risk is no longer applicable in Arkansas as a separate theory. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

Causation.

Proximate cause is defined in terms of direct causation. Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983).

In tort suit against defendant who shot him, plaintiff's negligence would not present an issue for the jury, since the negligent act did not lead in a natural and continuous sequence, unbroken by any efficient intervening cause, to defendant's intentional act of firing the shotgun which caused the damages and, accordingly, instruction on comparative negligence was not warranted. Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983).

In a products liability case, the injured plaintiff could not recover from the defendant/manufacturer where the jury found no causal link between the defendant's conduct and the plaintiff's injuries. Bonds v. Snapper Power Equip. Co., 935 F.2d 985 (8th Cir. 1991).

Under the express language of subsection (c) of this section, there must be a determination of “proximate cause” before any “fault” can be assessed against the claiming party. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993); Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994).

Where the evidence at trial did not establish a causal connection between the failure to wear safety goggles and the damages to plaintiff's eye, the trial court erred in giving a comparative fault instruction. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).

In determining whether plaintiff's negligence is contributory, plaintiff's conduct is to be viewed as to whether it was a proximate cause of her damages. Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 888 S.W.2d 303 (1994).

Comparative Negligence.

It was proper to find that the total negligence causing the injury should be prorated between the plaintiff and defendant and 25% to driver of tractor-trailer. Ward Body Works, Inc. v. Smallwood, 227 Ark. 314, 298 S.W.2d 332 (1957) (decision under prior law).

In personal injury suit, verdicts for plaintiffs were proper. Missouri Pac. Transp. Co. v. Guthrie, 227 Ark. 566, 299 S.W.2d 829 (1957) (decision under prior law).

Where plaintiff's contributory negligence is less than that of the other party he is entitled to a verdict but his damages will be reduced in proportion to his contributory negligence. Gibson v. United States, 163 F. Supp. 385 (W.D. Ark. 1958) (decision under prior law).

In personal injury action, plaintiff was entitled to recover where the jury found that he was 10% negligent, but his recovery was limited to 90% of his total damages. Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958) (decision under prior law).

Where pedestrian sued for injuries sustained when struck by automobile while walking across street, the pedestrian could obtain judgment for 20% of his total damages where the jury found him to be 80% negligent. Johnson v. Brewer, 228 Ark. 946, 311 S.W.2d 301 (1958) (decision under prior law).

Where the negligence of two parties is equal, neither can recover. Sunday v. Burk, 172 F. Supp. 722 (W.D. Ark. 1959) (decision under prior law).

Where the evidence showed that the contributory negligence of both parties was equal the trial judge was correct in his conclusion that neither party could recover against the other. Easley v. Inglis, 233 Ark. 589, 346 S.W.2d 206 (1961) (decision under prior law).

Contributory negligence does not bar a plaintiff's recovery if it is of less degree than that of the defendant. Scoville v. Missouri Pac. R.R., 458 F.2d 639 (8th Cir. 1972) (decision under prior law).

Where two vehicles collided and both drivers were negligent, but negligence of one driver was less than that of the other, the first driver may recover as long as the damages are diminished by the jury in proportion to the amount of fault attributable to him. Scoville v. Missouri Pac. R.R., 458 F.2d 639 (8th Cir. 1972).

The basic purpose of law that provided that contributory negligence was not a bar to recovery where negligence of person claiming damages was less than the person causing such damages was to distribute the total damages among those who caused them, and since the legislature intended to deny recovery to a plaintiff only when his negligence was at least 50% of the cause of the alleged injuries, where the plaintiff's negligence was less than 50% of all the codefendants' he was entitled to recover from each or all of them as joint tortfeasors even though the plaintiff's negligence equalled or exceeded that of a particular codefendant. Riddell v. Little, 253 Ark. 686, 488 S.W.2d 34 (1973).

Where machine operator employee was experienced, had been cautioned on dangers and had violated operating instructions, there was evidence to support the verdict that his fault exceeded that of his employer. Smith v. Aaron, 256 Ark. 414, 508 S.W.2d 320 (1974) (decision under prior law).

Under the Arkansas comparative negligence statute in effect at the time of accident, a claimant could recover only if his negligence was of a lesser degree than the negligence of the defendant; and if a claimant was without fault, he could recover the full amount of any damages proximately caused by the United States and it made no difference that another claimant might have been more negligent than the United States. Deal v. United States, 413 F. Supp. 630 (W.D. Ark. 1976), aff'd, 552 F.2d 255 (8th Cir. Ark. 1977) (decision under prior law).

The fault sought to be compared in comparative negligence claim must be a proximate cause of the damages sustained by a party. Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983).

In a personal injury suit brought by a hotel guest who fell when the toilet lid detached from the toilet assembly, there was no substantial evidence of the guest's negligence and the issue of comparative fault should not have been presented to the jury; thus, the trial court erred by denying a motion for a directed verdict on the issue of comparative negligence and by refusing to instruct the jury as to res ipsa loquitur. Marx v. Huron Little Rock, 88 Ark. App. 284, 198 S.W.3d 127 (2004).

In a negligence case, the trial court committed reversible error when it submitted the case on special interrogatories, without allowing counsel to argue the effect of the comparative-fault special interrogatory. Campbell v. Entergy Ark., Inc., 89 Ark. App. 91, 200 S.W.3d 473 (2004), rev'd, 363 Ark. 132, 211 S.W.3d 500 (2005).

In a wrongful death case brought by pedestrian's administratrix, the trial court did not err by denying plantiff's motion for directed verdict on defendant motorist's assertion of comparative fault; there was substantial evidence that the pedestrian was negligent. There was testimony that the driver never crossed the center line and had remained in the northbound lane at all times, and it was up to the jury to determine the weight and value to be given to the testimony of the witnesses. Belcher v. Denton, 2016 Ark. App. 263, 492 S.W.3d 551 (2016).

Contribution among Tortfeasors.

The adoption of comparative fault did not prevent a joint tortfeasor, whose fault had been determined to be in the amount of 50 percent or more, from having contribution from his fellow tortfeasor who was less negligent. Missouri Pac. R.R. v. Star City Gravel Co., 452 F. Supp. 480 (E.D. Ark. 1978), aff'd, 592 F.2d 455 (8th Cir. 1979).

Exemption.

Where state fair booklet and entry forms clearly stated that the fair association would not be responsible for loss or damage to property while it was on the fair grounds and the fair booklet also specifically informed entrants that if they desired to protect their property from fire loss, they should obtain insurance against that risk, a jury could conclude that, taken as a whole, the clauses exempted the fair association from liability for negligently caused fire damage to property. Frensley v. National Fire Ins. Co., 856 F.2d 1199 (8th Cir. 1988).

Fault.

Fault to be compared may consist of a party's breach of warranty. Little Rock Elec. Contractors v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988).

Insurance.

In action for benefits of uninsured motorist clause in policy of auto insurance where claimant was found to have been guilty of contributory negligence less in degree than that of other driver, diminution of jury verdict was properly based upon total verdict rather than upon policy limit for uninsured motorist protection so as to constitute a recovery in excess of policy limit permitting a recovery of penalty and attorney's fees. Alexander v. Pilot Fire & Cas. Ins. Co., 331 F. Supp. 561 (E.D. Ark. 1971) (decision under prior law).

A subrogated insurer is barred from recovery if the insured would be barred from pursuing his cause of action because of his contributory negligence; accordingly, where the evidence showed that decedent's negligence exceeded the total negligence of all the defendants, the subrogated insurer cannot recover for the amounts paid to decedent's beneficiaries. Insurance Co. of N. Am. v. United States, 527 F. Supp. 962 (E.D. Ark. 1981).

Jury.

Since there cannot be an unavoidable accident when one of the parties was negligent, the trial court did not err in refusing to instruct the jury relative to unavoidable accident, the collision in question certainly being caused by somebody's negligence and the jury finding both parties to be negligent. Sullivan v. Fanestiel, 229 Ark. 662, 317 S.W.2d 713 (1958) (decision under prior law).

It was the function of the jury to determine how the negligence of the plaintiff compared to the negligence of the defendant where there was a question of contributory negligence and assumption of risk involved. Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971) (decision under prior law).

The question of the comparative negligence of the parties was exclusively for the jury. Scoville v. Missouri Pac. R.R., 458 F.2d 639 (8th Cir. 1972) (decision under prior law).

Where the plaintiff claimed its dairy herd was injured as a result of faulty design of the defendant's silo and defendants responded with sufficient evidence of owner mismanagement at the dairy to warrant a fault comparison by the jury, the district court erred when it refused to instruct the jury to reduce plaintiff's award by the amount of its own negligence or other breach of duty. Circle J Dairy, Inc. v. A.O. Smith Harvestore Prods., Inc., 790 F.2d 694 (8th Cir. 1986).

Where the interrogatory clearly instructed the jury to use 100% to represent the total negligence of the defendants, not the total negligence contributing to the injury, the jury was allowed to consider the plaintiff's blame. Circle J Dairy, Inc. v. A.O. Smith Harvestore Prods., Inc., 790 F.2d 694 (8th Cir. 1986).

Where the plaintiff asked for $684,962 in damages and was awarded $500,000, or approximately 77% of the claim, jurors did not consider any fault on the plaintiff's part equal to or exceeding that attributable to defendants. Circle J Dairy, Inc. v. A.O. Smith Harvestore Prods., Inc., 790 F.2d 694 (8th Cir. 1986).

A trial court is not obligated to give an instruction on assumption of risk when such theory of recovery is no longer applicable law in Arkansas. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

Submission of comparative fault special-interrogatory verdict forms to the jury by the circuit court during deliberations without allowing the victim the opportunity to argue to the jury the effects of answers to those interrogatories violated subsection (d) of this section; further, the error was not harmless, pursuant to Ark. R. Civ. P. 61, as the victim's inability to argue the effects of the jury's answers to the interrogatories was prejudicial. Campbell v. Entergy Arkansas, Inc., 363 Ark. 132, 211 S.W.3d 500 (2005).

Circuit court's error in resubmitting a negligence case on special interrogatory verdict forms without allowing the individual the opportunity to argue to the jury the effects of the answers to the interrogatories pursuant to § 16-64-122(d) was not harmless error where the jury apportioned each party fifty percent (50%) fault, even the slightest tipping of those percentages in favor of the individual would have resulted in a judgment against the owner of the electrical wire, the jury had been deadlocked at one point, six to six, only the minimum number of jurors needed for a verdict were in agreement, and the error was particularly injurious because the individual could not have known at closing arguments that special interrogatory forms would be used. Campbell v. Entergy Arkansas, Inc., 363 Ark. 132, 211 S.W.3d 500 (2005).

Trial court did not err in a product liability action in allowing evidence of a driver's alcohol consumption and instructing the jury on comparative fault under subsection (a) of this section; it was for the jury to decide whether the driver's fault, if any, served as a proximate cause of the truck catching on fire. Gartman v. Ford Motor Co., 2013 Ark. App. 665, 430 S.W.3d 218 (2013).

Jury Instructions.

Trial court properly instructed the jury on comparative fault as the broad language set forth in this section contradicted plaintiff's claim that fault should not be compared in enhanced-injury cases; under Arkansas law, comparative fault was applicable to all actions for personal injury or wrongful death. Bishop v. Tariq, Inc., 2011 Ark. App. 445, 384 S.W.3d 659 (2011).

Malpractice.

The issue of a plaintiff's fault may be submitted to the jury in a legal malpractice action even when the plaintiff has not taken some specific action to interfere with the attorney's performance. Reliance Nat'l Indem. Co. v. Jennings, 189 F.3d 689 (8th Cir. 1999).

Mitigation.

The duty to mitigate damages is frequently viewed as a duty imposed by law to further a policy limitation on the amount of damages that may be collected by an injured party. Resolution Trust Corp. v. Kerr, 804 F. Supp. 1091 (W.D. Ark. 1992)Criticized byResolution Trust Corp. v. Armbruster, 52 F.3d 748 (8th Cir. 1995).

Multiple Defendants.

The plaintiff may recover from an individual defendant in a multiple defendant case even though the negligence of the individual defendant is less than that of the plaintiff. Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th Cir. 1996).

In a simple negligence case, the relative fault of the plaintiff is compared to the relative fault of the defendant and the plaintiff may recover damages only if his fault is less than the defendant's fault; in a case where there are multiple defendants, this section provides that a plaintiff is allowed to recover if his relative fault is less than the combined fault of all defendants. Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th Cir. 1996).

Pleading.

It may be possible to plead comparative negligence in mitigation of the tort of deceit. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. First Nat'l Bank, 774 F.2d 909 (8th Cir. 1985).

As a consequence of failing to plead contributory negligence as an affirmative defense, defendant retailer did not have available the full benefit of a contributory negligence defense under subsection (b) of this section, but the failure did not make all evidence relating to plaintiff's conduct excludable under Fed. R. Evid. 401 and 403. Dupont v. Fred's Stores of Tenn., Inc., 652 F.3d 878 (8th Cir. 2011).

Professional Negligence.

This section can achieve its purpose in an accountant malpractice action, and its application will not improperly protect accountants from liability for the portion of harm caused by their professional negligence. FDIC v. Deloitte & Touche, 834 F. Supp. 1129 (E.D. Ark. 1992).

Review.

Apportionment of fault under this state's comparative fault statute is a matter within the province of the finder of fact, and thus subject to review under the clearly erroneous standard. Mandel v. United States, 793 F.2d 964 (8th Cir. 1986).

In case where jury determined the plaintiffs were more at fault than the defendants, but still allowed recovery for plaintiffs, the evidence which was presented to the jury on the defendants' behalf was substantial and the trial court was correct in denying the motion for new trial. Hodges v. Jet Asphalt & Rock Co., 305 Ark. 466, 808 S.W.2d 775 (1991).

Scope.

No Arkansas cases suggest that Arkansas follow the substantive comparative fault rule that a plaintiff's degree of fault should always be compared with the fault of other possible wrongdoers, even if plaintiff has asserted no claim against those wrong doers; indeed, given the plain language of this section — that the plaintiff's fault should be compared to that of the parties from whom the plaintiff “seeks to recover damages” — it is hard to imagine how the legislature's words could be construed to reach such a result. Hiatt v. Mazda Motor Corp., 75 F.3d 1252 (8th Cir. 1996).

Seat Belts.

The nonuse of a seat belt may constitute a proximate cause of injury if some or all of the damage sustained by the nonuser would not have occurred had the seat belt been worn. Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989).

Failure to wear an available seat belt may, in the absence of a statute requiring use, nevertheless constitute negligence under the general common-law standard of ordinary care. Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989).

A jury may assess a percentage of fault against plaintiff if defendants can demonstrate the degree to which her injuries would have been reduced by use of a seat belt. Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989).

Nonuse of seat belts may be admissible as evidence of comparative fault if such nonuse is a proximate cause of plaintiffs' injuries, which the defendant has the burden of proving. Baker v. Morrison, 309 Ark. 457, 829 S.W.2d 421 (1992).

Where there was no evidence that their nonuse of seat belts caused their injuries, the trial court erred in denying plaintiffs' motion in limine to exclude evidence concerning their failure to wear seat belts, and the case was remanded for new trial where the erroneously admitted evidence may have led the jury to attribute more fault to plaintiffs than should have been attributed to them. Baker v. Morrison, 309 Ark. 457, 829 S.W.2d 421 (1992).

Cited: Strange v. Stovall, 261 Ark. 53, 546 S.W.2d 421 (1977); Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980); Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980); Legate v. Passmore, 268 Ark. 1161, 599 S.W.2d 151 (Ct. App. 1980); Brewer v. Jeep Corp., 546 F. Supp. 1147 (W.D. Ark. 1982); W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982); Smith v. Missouri Pac. R.R., 716 F.2d 1208 (8th Cir. 1983); Brewer v. Jeep Corp., 724 F.2d 653 (8th Cir. 1983); Bankston v. Pulaski County School Dist., 281 Ark. 476, 665 S.W.2d 859 (1984); Scogin v. Century Fitness, Inc., 780 F.2d 1316 (8th Cir. 1985); Rini v. Oaklawn Jockey Club, 662 F. Supp. 569 (W.D. Ark. 1987); Dawson v. Fulton, 294 Ark. 624, 745 S.W.2d 617 (1988); Elk Corp. of Ark. v. Builders Transport, Inc., 862 F.2d 663 (8th Cir. 1988); Garver & Garver v. Little Rock San. Sewer Comm., 300 Ark. 620, 781 S.W.2d 24 (1989); E. Ritter & Co. v. Department of Army, 874 F.2d 1236 (8th Cir. 1989); Chaney v. Falling Creek Metal Prods., Inc., 906 F.2d 1304 (8th Cir. 1990); Robertson v. Union Pac. R.R., 954 F.2d 1433 (8th Cir. 1992).