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57. What is the maximum amount, if anything, that the child's representative can recover from the driver?
A four-year-old child sustained serious injuries when a playmate pushed him from between two parked cars into the street, where he was struck by a car. The child, by his representative, sued the driver of the car, the playmate's parents, and his own parents. At trial, the child's total damages were determined to be $100,000. The playmate's parents were determined to be 20% at fault because they had failed to adequately supervise her. The driver was found to be 50% at fault. The child's own parents were determined to be 30% at fault for failure to adequately supervise him. The court has adopted the pure comparative negligence doctrine, with joint and several liability, in place of the common law rules relating to plaintiff's fault. In addition, the common law doctrines relating to intra-family liability have been abrogated.
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That is what occurred here: one defendant, the playmate, pushed the child into the street because her parents failed to adequately supervise her, and a second individual, the driver, was also at fault in striking the child with driver's car. Those failings combined to cause the child's harm — being struck by a car in the street — because the actions of no one defendant alone would have produced the harm. Thus, the child (through his parents as representative) can recover his total damages from the driver pursuant to joint and several liability, as answer choice C recognizes.
A is incorrect. As described above, the child can collect the full amount of his damages, $100,000, from the driver. The amount in this answer does not reflect the availability of joint and several liability to increase the total of damages.
B is incorrect. As described above the child can collect the full amount of his damages, $100,000, from the driver because joint and several liability is available. Note that the child's ability to recover is not reduced under pure comparative negligence principles because the child was not himself negligent or at fault.
D is incorrect. If contributory negligence applied and the jurisdiction imputed the parents' negligent supervision to the child, D could be correct. Under contributory negligence principles, a plaintiff that is even 1% at fault may not recover; here, if the parent's negligence was imputed to the child, that would lead to the child being unable to recover. A limitation on the contributory negligence bar in such situations is if the defendant had the «last clear chance» to avoid the harm — in that situation, the plaintiff's claim is not barred. Contributory negligence and the last clear chance doctrine do not apply to this question, however, because the MBE instructs test takers to apply pure comparative negligence and joint and several liability (and this question even states to apply them as well).