Ark. Code Ann. § 16-64-122

Section 16-64-122(a) does not permit comparison of fault in a warranty suit seeking direct and incidental damages rather than damages for personal injury, wrongful death, or injury to property.

Little Rock Electrical Contractors, Inc. v. Okonite Co. · filed 1988-02-01(a)

LRECI’s suit was not one for damages for personal injuries or wrongful death or injury to property, and it was error to instruct the jury on comparative fault.

Section 16-64-122 denies recovery to a plaintiff who is over fifty percent at fault.

E. Ritter & Co. v. Department of the Army, Corps of Engineers · filed 1989-05-03

Arkansas comparative fault law denies recovery to a plaintiff who is over fifty percent at fault. Ark.Code Ann. § 16-64-122 (1987). The district court found, however, that the government’s evidence failed to prove that Ritter was at least fifty percent at fault. Based on the record, we cannot say that this finding is clearly erroneous.

Section 16-64-122 reduces a plaintiff’s recovery by the plaintiff’s share of fault and bars recovery when that fault equals or exceeds the defendant’s.

Hataway v. McKinley · filed 1992-04-27

Arkansas is a comparative fault state, which means that an Arkansas plaintiff’s recovery is reduced by the amount of his fault. Ark.Code Ann. § 16-64-122 (Michie 1987). Under Arkansas law, a plaintiff is not barred from recovering damages from a defendant unless his fault is equal to or greater than the defendant’s fault.

Section 16-64-122 permits comparison of a plaintiff's fault with a defendant's only when that fault proximately caused the plaintiff's damages.

Bell v. Misenheimer · filed 2008-06-04

Under our comparative-fault statute, Ark.Code Ann. § 16-64-122 (Supp.2003), the fault of a plaintiff in a personal-injury case is compared to the defendant's fault. If the plaintiff's fault is less than the defendant's, the plaintiff may recover damages from the defendant after the damages have been diminished in proportion to the plaintiff's own fault. If the plaintiff's fault is greater than or equal to the defendant's, then the plaintiff is not entitled to recover damages. The "fault" to be compared under the statute must be a proximate cause of the plaintiff's damages.

Section 16-64-122(a) does not apply when the jury finds the defendant was not negligent, because the jury does not compare fault.

Meador v. Total Compliance Consultants, Inc. · filed 2013-01-31(a)

However, the jury’s verdict that TCC was not negligent means that the comparative-fault statute was not applied to Meador’s case at all, much less applied to his prejudice. Simply put, pursuant to the instructions given, the verdict of no negligence on TCC’s part means that the jury did not consider whether Meador was also negligent and therefore did not compare fault.

Section 16-64-122 permits the jury to compare negligence when a plaintiff was aware of a danger, rather than applying the assumption of risk doctrine.

Dawson v. Fulton · filed 1988-02-29

We no longer apply the assumption of risk doctrine, but permit the jury to compare negligence pursuant to Ark. Code Ann. § 16-64-122 (1987).

Section 16-64-122 permits a jury to consider another party’s negligence when it is properly alleged and supported by evidence, even if one party admits negligence.

Bryant v. Eifling · filed 1990-01-22

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. ... The Arkansas comparative fault statute, Ark. Code Ann. § 16-64-122 (1987), forms the basis for several instructions set forth in Chapter 21 of the Arkansas Model Jury Instructions (Civil), 3rd Edition.

Section 16-64-122(c) permits a jury to compare fault arising from negligence with fault arising from a contractual breach.

Garver & Garver, P.A. v. Little Rock Sanitary Sewer Committee · filed 1989-12-11(c)

It is clear under Arkansas law that fault in terms of negligence and fault in terms of contractual breaches can be compared by the jury.

Section 16-64-122 does not permit a comparative-fault instruction in a malicious prosecution case because malicious prosecution is an intentional tort.

Kellerman v. Zeno · filed 1998-11-11

Based upon our supreme court’s holding in Whitlock v. Smith, we find no error in the trial court’s rejection of appellants’ proffered comparative-fault instructions.

Arkansas comparative fault law applies to legal malpractice claims when evidence supports assigning fault to both the lawyer and the client.

Reliance Natl. v. Jennings · filed 1999-08-10

We believe that the Arkansas courts would apply the law of comparative fault if presented with the facts of this case where there was conflicting evidence on the role and responsibilities of the competing parties.

Section 16-64-122(a) does not apply comparative fault to a warranty claim seeking recovery for economic loss rather than physical harm to property.

E.D. Smith & Sons, Limited v. Arkansas Glass Container Corporation · filed 2001-01-04(a)

Although the Arkansas comparative fault statute on its face embraces warranty actions, the state courts have held that it does not apply when the damages are for economic loss. ... So here, although the glass jars could be said to be injured property, the real gist of the action is to recover E.D. Smith’s business loss from having to take the jars back, not merely to recover the cost of rendering the jars, as jars, nondefective.

Section 16-64-122 permits comparison of fault in personal-injury and wrongful-death actions, including enhanced-injury cases.

Bishop v. Tariq, Inc. · filed 2011-06-22(a), (e)

The broad language chosen by our legislature contradicts Mrs. Bishop’s claim that fault should not be compared in enhanced-injury cases; under our law, comparative fault is applicable to all actions for personal injury or wrongful death.

Section 16-64-122(a) compares a claimant’s fault with the fault of parties from whom the claimant seeks damages; an impleaded third party is excluded when the claimant asserts no claim against that party.

Hiatt v. Mazda Motor Corp. · filed 1996-01-30(a)

Because he did not add a claim against Wadlow under Rule 14(a), Wadlow was not a "party from whom [Hiatt sought] to recover damages" for purposes of the Arkansas comparative fault statute.

Section 16-64-122(a) compares a plaintiff’s fault only with the fault of parties from whom the plaintiff seeks damages.

Reed v. Malone's Mechanical, Inc. · filed 2012-02-22(a)

Under the plain language of the statute, a plaintiffs fault may only be compared with the fault of parties from whom the plaintiff seeks to recover damages.

Section 16-64-122(a) excludes an employer from the comparative fault inquiry when the injured employee does not seek damages from the employer.

Robertson v. Norton Company · filed 1998-06-01(a)

As Robertson is not seeking damages from his employer, the plain meaning of this statute excludes his employer from the comparative fault inquiry.

Section 16-64-122 compares a claimant’s fault with the fault of parties from whom the claimant seeks damages; a co-plaintiff’s fault is not combined with a defendant’s fault when the claimant seeks no damages from the co-plaintiff.

Nationsbank, N.A. v. Murray Guard, Inc. · filed 2001-01-25(a)

In light of this court's rules regarding statutory construction, we reject NationsBank's argument that KPMG was a party from whom they sought to recover damages for purposes of section 16-64-122. At no time did NationsBank and KPMG claim damages from one another.

Section 16-64-122(a) permits comparison of a plaintiff’s fault with the fault of parties from whom the plaintiff seeks damages, but does not permit assigning a percentage of fault to a nonparty.

Belz-Burrows, L.P. v. Cameron Construction Co. · filed 2002-06-19(a)

Cameron is correct that a jury should not be permitted to assign a percentage of fault to a person who is not a party to the suit. See generally Booth v. United States Indus., 583 F. Supp. 1561 (W.D. Ark. 1984). This rule derives from Arkansas’s comparative-fault statute, which provides that a plaintiffs fault may be compared with the fault chargeable to “the party or parties from whom [he] seeks to recover damages.” (Emphasis added.) Ark. Code Ann. § 16-64-122(a) (Supp. 2001). However, the jury in this case, in rendering its general verdict, did not assign a percentage of fault to Lowe’s, nor compare Belz’s (the plaintiffs) fault with Lowe’s. The comparative-fault statute was therefore not implicated in the manner that Belz suggests.

Section 16-64-122(a) permits comparison of a plaintiff’s fault with the fault of parties from whom the plaintiff seeks damages, but does not permit assigning a percentage of fault to a nonparty.

E-Ton Dynamics Industrial Corp. v. Hall · filed 2003-09-03(a)

A jury should not be permitted to assign a percentage of fault to a person who is not a party to the suit. See generally Booth v. United States Indus., 583 F. Supp. 1561 (W.D. Ark. 1984). This rule derives from Arkansas’s comparative-fault statute, which provides that a plaintiffs fault may be compared with the fault chargeable to “the party or parties from whom [he] seeks to recover damages.” Ark. Code Ann. § 16-64-122(a) (Supp. 2001).

Each plaintiff’s fault is compared individually with the fault of the party or parties from whom that plaintiff seeks damages; another plaintiff’s fault does not reduce a fault-free plaintiff’s recovery.

Chong Sun Yu v. Metropolitan Fire Extinguisher Co. · filed 2006-03-01(b)(1)

We agree with Yu that the legislature’s use of the word “party” in its singular form has an obvious meaning — the court is to consider each plaintiff individually when comparing her fault to that of the “party or parties” that she is seeking to recover damages from. The fact that there are multiple plaintiffs is of no moment; the required analysis necessarily entails comparing the fault attributable to each individual plaintiff with that of the party against whom recovery is sought.

When both parties may have been negligent, § 16-64-122 leaves apportionment of fault to the jury.

Lockett v. International Paper Company · filed 1989-03-28

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.

Section 16-64-122(c) treats failure to wear a seat belt as comparative fault only if it proximately caused the plaintiff’s damages.

Potts v. Benjamin · filed 1989-08-21(c)

Therefore, assuming that Mrs. Potts’ nonuse of her seat belt constituted a failure to exercise ordinary care, such non-use is not “fault” for purposes of comparative negligence unless it proximately caused Mrs. Potts damage.

Failure to wear a seat belt counts as comparative fault only if it proximately caused the plaintiff’s injuries.

Baker v. Morrison · filed 1992-05-26(c)

Thus, we hold that appellants’ nonuse of their seat belts may have been admissible as evidence of their comparative fault if such nonuse was a proximate cause of appellants’ injuries.

Section 16-64-122 defines fault to include breach of a legal duty that proximately causes damages, so the comparative-fault defense incorporates a duty element.

Resolution Trust Corp. v. Kerr · filed 1992-09-16

The defense of comparative fault also incorporates the concept of duty and the breach thereof. The Arkansas comparative fault statute defines fault as “any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party.” Ark.Code Ann. § 16-64-122 (1987). These duties may be regarded as duties imposed by the law on all persons in general rather than a duty running to a specific individual but that does not alter the fact that each does incorporate the concept of duty.

Section 16-64-122 requires a determination of proximate cause before fault can be assessed against the claiming party.

Skinner v. R.J. Griffin & Co. · filed 1993-06-14(c)

Under the express language of the statute there must be a determination of "proximate cause" before any "fault" can be assessed against the claiming party.

Fault may be assessed against a claimant only when the claimant’s conduct proximately caused damages.

Williams v. Mozark Fire Extinguisher Co. · filed 1994-12-05(c)

Williams correctly states that under the comparative fault statute there must be a determination of proximate cause before any fault can be assessed against a claiming party.

Section 16-64-122 permits a jury to consider comparative fault only when there is substantial evidence that the plaintiff’s fault proximately caused the damages.

Marx v. Huron Little Rock · filed 2004-11-10

The “fault” to be compared under the statute must be a proximate cause of the plaintiff s damages. ... We therefore conclude that the trial court should have granted appellant’s motion for a directed verdict on comparative fault and should not have instructed the jury on that issue.

Section 16-64-122 permits comparison of fault in wrongful-death actions and includes conduct that proximately causes damages within the meaning of fault.

Hagar v. Shull · filed 2017-03-29(a), (c)

Our comparative-fault statute provides that, for all actions for damages for personal injuries or wrongful death or injuries to property in which recovery is predicated on fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party from whom recovery is sought. See Ark. Code Ann. § 16-64-122(a) (Repl. 2005). The word “fault” includes any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party. Ark. Code Ann. § 16-64-122(c). ... In light of this evidence, Dr. Shull’s reliance on the defense of comparative fault made the source of the medications relevant.

Section 16-64-122 treats unreasonable implied assumption of risk as comparative fault and leaves reasonable implied assumption of risk unavailable as a defense to negligence.

Rini v. Oaklawn Jockey Club · filed 1988-11-18(c)

Under Ark.Code Ann. § 16-64-122 and the line of Arkansas cases construing it, Type 4 assumption of risk must no longer be a complete bar to recovery, but rather one element to be factored into the comparative fault analysis. ... Accordingly, we conclude that Type 3 assumption of risk is not a defense to an action for negligence in Arkansas.

Section 16-64-122 treats assumption of risk as an element of comparative fault, not a complete bar to recovery.

Bonds v. Snapper Power Equipment Co. · filed 1991-06-21

Although the district court should have eliminated the words “this defense,” the error was harmless because the other instructions made it clear that assumption of risk is an element of fault, not a complete bar to recovery.

Section 16-64-122 requires the jury to compare fault, so assumption of risk is not a separate defense requiring its own instruction.

Ouachita Wilderness Institute v. Mergen · filed 1997-07-14

This court determined in Dawson v. Fulton, 294 Ark. 624, 745 S.W.2d 617 (1988), that because the jury must compare negligence pursuant to section 16-64-122, the doctrine of assumption of the risk is no longer applicable in Arkansas as a separate theory. ... The trial court was thus not obligated to give an instruction on assumption of risk when it is no longer a defense in Arkansas.

A claimant whose fault is equal to or greater than the fault of the party from whom recovery is sought cannot recover damages.

Joe Frensley and Jack Martin v. National Fire Insurance Company of Hartford · filed 1988-09-19

We also note that since the interrogatories did not "infect” one another, the jury’s finding that appellants’ negligence was greater than that of the Fair Association remains an insurmountable obstacle to recovery and supports the view that any error in the contested interrogatory was harmless.

Section 16-64-122 permits a claimant to recover only when the opposing party is more at fault.

Hodges v. Jet Asphalt & Rock Co. · filed 1991-05-13

For the appellants to take anything under our comparative fault-statute, the appellees must be more at fault than the appellants. See Ark. Code Ann. § 16-64-122 (1987).

Section 16-64-122(b)(2) bars a plaintiff from recovering damages when the plaintiff’s fault equals or exceeds the defendant’s.

Belcher v. Denton · filed 2016-05-11(b)(2)

Our comparative-fault statute provides that a plaintiff cannot recover damages if his own fault is equal to or greater than the defendant’s.

Section 16-64-122 bars recovery when a plaintiff is more at fault than the defendant.

Reliance National Indemnity Company v. Alston Jennings, Jr. Wright, Lindsey & Jennings, a Partnership · filed 1999-08-10(b)(2)

Reliance’s claim that the district court erred when it limited the company’s possible recovery. to unreimbursed losses is thus moot since the jury found it 97% at fault and the Arkansas comparative fault statute does not allow any recovery when a plaintiff is more at fault than the defendant.

Subsection (d) permits counsel to argue the effect of answers to comparative-fault interrogatories, but federal courts are not bound to follow it.

Dewitt v. Smith · filed 1993-12-03(d)

Counsel were told that the court had previously ruled, and was then ruling, that the amendment to the Arkansas Comparative Fault Statute was “procedural” in nature and that this court was not bound to follow it and declined to do so.

Section 16-64-122(d) requires that counsel be permitted to argue to the jury the effect of its answers to comparative-fault interrogatories.

Campbell v. Entergy Arkansas, Inc. · filed 2004-12-15(d)

Consequently, Campbell should have been permitted to argue the effect of the answers to the interrogatories to the jury, and it was error for the trial court to submit the case on interrogatories without allowing Campbell further argument.

Section 16-64-122(d) gives counsel the right to argue to the jury the effect of answers to comparative-fault interrogatories.

Campbell v. Entergy Arkansas, Inc. · filed 2005-06-30(d)

Based on our court’s decisions in Sun Mut. Ins. Co. v. Dudley, supra, and Rathbun v. Ward, supra, it is clear that the circuit court erred in resubmitting the case on special-interrogatory verdict forms without allowing Mr. Campbell the opportunity to argue to the jury the effects of answers to the interrogatories, pursuant to Ark. Code Ann. § 16-64-122(d).

Section 16-64-122(d) permits counsel to argue the effect of comparative fault interrogatories, but not the effects of contribution among joint tortfeasors.

Rathbun v. Ward · filed 1993-12-06(d)

While it is true that the right to contribution from a joint tortfeasor is dependant upon a finding of joint and several liability, we are not persuaded that section 16-64-122(d) allows the concepts and effects of contribution among joint tortfeasors to be argued to the jury.