Two people are drinking and driving. One runs a red light and injures the other. How should fault be apportioned? In 1950, the New Mexico Supreme Court adopted the unlawful acts doctrine – a doctrine that bars a plaintiff from recovering if the plaintiff was committing a “wrong” at the time of the injury. Later, New Mexico adopted comparative fault – a doctrine that apportions fault between defendant and plaintiff and assigns damages accordingly. Recently, the unlawful acts doctrine has seen a resurgence as a defense to tort claims in New Mexico. However, this Comment argues that by New Mexico’s adoption of comparative fault implicitly overruled the unlawful acts doctrine in cases of negligence. The unlawful acts doctrine, a relic of contributory negligence, cannot coexist in harmony with New Mexico’s current tort law.
Alison K. Goodwin, One Drunk Driver, Shame on You, Two Drunk Drivers, Shame on Who: Reconciling the Unlawful Acts Doctrine with Comparative Negligence, 48 N.M. L. Rev. 173 (2018).