Mont. Code Ann. § 27-1-702

Section 27-1-702 reduces a negligent plaintiff’s recovery in proportion to that plaintiff’s negligence and bars recovery when the plaintiff’s negligence is greater than the combined negligence of all others.

Bird · filed 2026-02-10

If, as the United States argues, Kaneisha is found to have been negligent, her recovery will either be proportionately reduced or barred under Montana’s comparative negligence statute. See Mont. Code Ann. § 27-1-702.

Section 27-1-702 bars a plaintiff from recovering when the plaintiff's negligence exceeds the negligence of the party against whom recovery is sought.

Carne v. United States · filed 1986-02-10

7. Plaintiff’s own negligence, which exceeds that of the party against whom recovery is sought, bars recovery in this case. Mont.Code Ann. § 27-1-702.

Section 27-1-702 allows a plaintiff to recover when the plaintiff’s negligence is no greater than the defendant’s, but reduces damages in proportion to the plaintiff’s negligence.

Cordier v. Stetson-Ross, Inc. · filed 1979-11-28

This allegation brings into play the provisions of section 27-1-702, MCA, our comparative negligence statute. Under that statute, if the plaintiff were negligent but in an amount not greater than the negligence of Stetson-Ross, Inc., any damages allowed are required to be diminished in the proportion that the amount of negligence is attributable to the person recovering.

A plaintiff’s damages are reduced by the percentage of negligence attributable to the plaintiff.

Johnson v. United States · filed 1980-08-01

Any damages allowed plaintiff Freddie Johnson against defendant United States in a subsequent trial on the bifurcated issue of damages shall be diminished by 25%, the amount of negligence attributable to plaintiff. M.C.A., § 27-1-702.

Section 27-1-702 reduces damages by the percentage of negligence attributable to the plaintiff.

Johnson v. United States · filed 1981-04-06

Damages allowed Freddie Johnson against the defendant United States are to be diminished by 25%, the amount of negligence attributable to the plaintiff. § 27-1-702 M.C.A.

A plaintiff cannot recover when her negligence exceeds the defendant's negligence.

Brohman v. State · filed 1988-01-19

Even assuming, as the District Court did, that there was negligence on the part of the State, Brohman's act of attempting to pass without a clear view was the proximate cause and far exceeded any negligence on the part of the State.

When a plaintiff seeks recovery against multiple defendants, Section 27-1-702 compares the plaintiff's negligence with the concurrent defendants' combined negligence to determine whether the plaintiff may recover.

North v. Bunday · filed 1987-03-31

We interpret Section 27-1-702, MCA, as requiring, in cases of multiple defendants, against whom recovery is sought, that the negligence of the plaintiff is to be compared with the combined negligence of the concurrent tortfeasor defendants to determine if plaintiff may recover.

Section 27-1-702 bars a plaintiff from recovering when the plaintiff’s negligence exceeds the defendants’ combined negligence.

Payne v. Knutson · filed 2004-09-28

Under § 27-1-702, MCA, a plaintiff cannot recover if his contributory negligence exceeds the combined negligence of the defendants.

Section 27-1-702 permits recovery despite a plaintiff’s partial negligence when that negligence does not exceed the defendant’s fault, with damages reduced in proportion to the plaintiff’s fault.

Peterson v. St. Paul Fire & Marine Insurance · filed 2010-08-24

In doing so, you should take into account that, under Montana law, if [defendant] was 50% or more negligent, then [plaintiff] would be entitled to recover damages from [defendant], even if [plaintiff] was partially negligent.

Section 27-1-702 allows a person to recover tort damages when their fault is no greater than the defendant’s and requires the court to consider their comparative fault.

English v. BNSF Railway Company · filed 2021-03-09

According to Montana’s comparative fault statute, a person seeking “tort damages” is entitled to recovery “if [his] contributory fault was not greater than the fault of the defendant.” §27-1-702, MCA. Therefore, English’s comparative fault must be considered.

Section 27-1-702 permits recovery of tort damages when the claimant’s contributory fault is no greater than the defendant’s fault, with recovery reduced by the claimant’s share of fault.

English v. BNSF Railway Company · filed 2021-03-30

According to Montana’s comparative fault statute, a person seeking “tort damages” is entitled to recovery “if [his] contributory fault was not greater than the fault of the defendant.” §27-1-702, MCA. Therefore, English’s comparative fault must be considered.

Section 27-1-702 permits a jury to compare both parties’ negligence even when the defendant violated a traffic statute.

Reed v. Little · filed 1984-04-11

We hold that the defense of contributory negligence on plaintiff’s part is available to a defendant who has violated a traffic statute. It is for the factfinder to determine the comparative degree of negligence on the part of plaintiff and defendant.

Section 27-1-702 permits a comparative negligence reduction of an award combining negligence and Consumer Protection Act damages when the verdict and instructions do not allow the damages to be separated.

Evans v. Teakettle Realty · filed 1987-04-10

Did the District Court err in applying the comparative negligence statute, Section 27-1-702, MCA, to reduce the Evans’ recovery under the Montana Consumer Protection Act? ... The jury found violations of the Act as well as negligence on the part of Teakettle. The law as stated in the instructions does not allow us to separate Teakettle’s actions in violation of the Consumer Protection Act from its actions which were negligent. We affirm the District Court’s reduction of damages based on Instruction No. 15.

Section 27-1-702 permits a contributory negligence defense despite a defendant’s nondelegable duty to provide a safe workplace.

Olson v. Shumaker Trucking & Excavating Contractors, Inc. · filed 2008-11-18

Section 27-1-702, MCA, provides, on the other hand, that “damages allowed must be diminished in proportion to the percentage of fault attributable to the person recovering.” ... The defense of contributory negligence remained available to Shumaker based upon the test set out by Shannon and Stepanek.

Section 27-1-702 permits a jailer to assert a detainee’s comparative negligence unless the jailer knew or should have known that the detainee was at risk of harm.

Est. of Mabee v. Wheatland County · filed 2025-11-04

Under these standards, a jailer may assert a detainee’s comparative negligence as a defense unless the jailer knew or should have known that the detainee was at risk of harm, even from his own negligent or intentional conduct. The District Court did not err when it permitted the County’s comparative negligence defense.

Section 27-1-702 bars recovery when a plaintiff is more than 50% negligent and reduces an eligible plaintiff’s recovery in proportion to their negligence.

Shahood v. Butte-Silver Bow · filed 2025-12-16

Under § 27-1-702, MCA, a plaintiff may not recover if the plaintiff is found to be greater than fifty percent negligent. While a plaintiff who is contributorily negligent may still recover if their contributory negligence was “not greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought,” their recovery is reduced in proportion to the percentage attributed to their contributory negligence.

Section 27-1-702 does not apply retroactively to cases filed before it took effect.

Rogers v. Western Airline · filed 1978-11-08

Both of the cases involved here were filed before the comparative negligence statute, section 27-1-702 MCA, came into effect. Under Dunham v. Southside National Bank of Missoula (1976), 169 Mont. 466, 548 P.2d 1383, the statute does not have a retroactive effect.

Section 27-1-702 does not apply retroactively to cases filed before it took effect.

Rogers v. Western Airline · filed 1979-11-08

Both of the cases involved here were filed before the comparative negligence statute, section 27-1-702 MCA, came into effect. Under Dunham v. Southside National Bank of Missoula (1976), 169 Mont. 466, 548 P.2d 1383, the statute does not have a retroactive effect.

Section 27-1-702 does not apply to an accident that occurred in 1973.

Green v. Hagele · filed 1979-05-23

Initially, we note that at the time of the accident in 1973, the law in Montana was that contributory negligence on the part of a plaintiff barred recovery, section 58-607, R.C.M.1947, now section 27-1-701 MCA. Montana’s comparative negligence statute does not apply. Section 58-607.1, R.C.M.1947, now section 27-1-702 MCA; Dunham v. Southside National Bank (1976), 169 Mont. 466, 474, 548, P.2d 1383, 1387.

Section 27-1-702 took effect July 1, 1975, and does not apply to causes of action arising before that date.

Stenberg v. Neel · filed 1980-07-14

The effective date of this statute was July 1, 1975, although it was passed by the legislature on March 17, 1975. ... The District Court did not err in instructing the jury to apply the law of contributory negligence rather than the law of comparative negligence.

Section 27-1-702 permits comparison of all forms of negligent conduct, including willful and wanton misconduct, when the conduct falls short of intending injury or damage.

Martel v. Montana Power Co. · filed 1988-03-10

We hold, therefore, that all forms of conduct amounting to negligence in any form including but not limited to ordinary negligence, gross negligence, willful negligence, wanton misconduct, reckless conduct, and heedless conduct, are to be compared with any conduct that falls short of conduct intended to cause injury or damage.

When comparative negligence is at issue, the jury should receive instructions explaining the effect of its fault findings, and counsel may argue that effect.

Smith v. Rorvik · filed 1988-03-09

On retrial, the District Court should instruct the jury on comparative negligence in order that the jury may understand the effect of the related questions in the special verdict, if the jury should come to that. The District Court may not restrict argument of counsel as to the effect of findings under comparative negligence.

Section 27-1-702 requires a comparative negligence instruction when evidence supports negligence by both the plaintiff and the defendant.

Buck v. State · filed 1986-08-04

Since 1975, it has been the law in this State that contributory negligence does not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property if the contributory negligence was not greater than the negligence of the person against whom recovery is sought. In such case the damages are diminished in proportion to the amount of negligence attributable to the person recovering. Section 27-1-702, MCA. Under that statute, it is the duty of the trial court, where there is evidence supporting the negligent acts of both the plaintiff and the defendant to instruct the jury on comparative negligence.

Section 27-1-702 allows a jury to consider a plaintiff’s comparative negligence when evidence of the plaintiff’s fault is disputed, even if the defendant struck the plaintiff’s car from behind.

Hart-Anderson v. Hauck · filed 1989-10-23

We conclude that Reed is controlling in the present case. In Reed, we discussed negligence per se and its interaction with Montana’s newly enacted statute on contributory negligence, § 27-1-702, MCA. ... As in Reed, it was possible for the jurors to find that plaintiff came to an abrupt stop in front of defendant and was contributorily negligent.

Section 27-1-702 requires comparison of the parties’ negligence even when a party is negligent per se, unless a statute expressly provides otherwise.

Giambra v. Kelsey · filed 2007-06-26

We hold that Montana’s comparative negligence scheme set forth in §§ 27-1-702 and -703, MCA, requires the fact-finder to consider the negligence of the claimant, injured person, defendants, and third-party defendants, even if a party proceeds under a claim of negligence per se or if the fact-finder determines that one or more persons was negligent per se. In the absence of an express statutory provision to the contrary, a claim of negligence per se or a determination that a person was negligent per se does not preclude the defense of contributory negligence or bar the apportionment of negligence liability based on a comparative negligence scheme.

Section 27-1-702 permits recovery despite a plaintiff’s contributory negligence unless the plaintiff is more than 50 percent negligent.

Peterson v. Eichhorn · filed 2008-07-15

Under that scheme, a plaintiffs contributory negligence is a defense to the charge of negligence, but contributory negligence does not bar the plaintiff from recovering damages “if the contributory negligence was not greater than the negligence of the person or the .combined negligence of all persons against whom recovery is sought.” Section 27-1-702, MCA. In other words, recovery is barred only if the plaintiff is found to be greater than 50 percent negligent.

Under the comparative negligence statute, implied assumption of risk is no longer a separate defense; the plaintiff's conduct is assessed under ordinary negligence standards.

Abernathy v. Eline Oil Field Services, Inc. · filed 1982-09-09

We therefore hold that the doctrine of implied assumption of risk is no longer applicable in Montana.

Section 27-1-702 does not reduce damages when the Montana Scaffolding Act applies.

Wilson v. Vukasin · filed 1996-08-27

As we held in Steiner, the defense of contributory negligence is not available under the Act. Thus, the District Court erred in applying contributory negligence and in reducing Wilson’s damage award pursuant to § 27-1-702, MCA.

Under § 27-1-702, an injured person’s negligence does not reduce a spouse’s or child’s loss of consortium award, but the claim is barred if the injured person is more than 50% negligent.

Mickelson v. Montana Rail Link, Inc. · filed 2000-04-28

For example, if plaintiff is determined to be 50% or less contributorily negligent for plaintiff’s injuries, then, under our comparative negligence statute, a spouse or child could recover 100% of a loss of consortium claim. If, however, plaintiff is determined to be 51% or more contributorily negligent for plaintiff’s injuries, then a spouse or child would recover nothing on a loss of consortium claim.

Section 27-1-702 allows summary judgment on comparative negligence when the evidence permits only one reasonable conclusion about the plaintiff’s negligence.

Larchick v. Diocese of Great Falls-Billings · filed 2009-05-19

However, as we have noted in previous opinions, summary judgment on the issue of comparative negligence is appropriate when reasonable minds “could not draw different conclusions from the evidence.” ... After reviewing the record and evidence in this case, we agree with the District Court that there is no evidence to suggest that Larchick acted negligently during the activity.

Comparative negligence is for the jury when the evidence permits reasonable jurors to differ on whether the plaintiff’s fault exceeds the defendant’s.

Smith v. BNSF Railway Company · filed 2025-10-09

It remains plausible in this case that a reasonable mind could conclude that Plaintiffs’ contributory negligence was less than fifty percent in comparison to Defendants’ negligence. The Court will deny summary judgement to BNSF on the issue of contributory negligence.

Section 27-1-702 bars recovery when a claimant is more than fifty percent negligent; a court assessing restitution must consider evidence of the claimant’s negligence.

City of Whitefish v. Jentile · filed 2012-08-28

Montana’s comparative negligence scheme employs a “greater than” version of comparative negligence. Section 27-1-702, MCA. In other words, a plaintiff may not recover if the plaintiff is found to be greater than fifty percent negligent. ... Based on the foregoing, we conclude that the Municipal Court was obligated to consider any possible negligence on the part of Officer Zebro in making its restitution assessment.

Section 27-1-702 bars a criminal restitution claim when the claimant’s share of causation exceeds the defendant’s.

State v. Haynal · filed 2021-11-02

If the degree of causation apportioned to the claimant’s contributory negligence was “greater than” that apportioned to the criminal conduct of the defendant, the defense is a complete bar to recovery on the restitution claim. See § 27-1-702, MCA; Jentile, ¶¶ 31-34 (citing Giambra, ¶¶ 44, 48-49, and 51).