Defenses to Tort Liability: Comparative Negligence

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What Is Comparative Negligence?

Many personal injury cases are based on a negligence theory. However, it is sometimes the case that the injured party’s own negligence contributed to their own injury.  In these cases, the plaintiff’s damages award may be reduced in proportion to their own liability. 



This is known as ”comparative negligence,” and it is a defense where the court will compare the plaintiff’s own negligence against the defendant’s negligence, and reduce the damages award accordingly. There are many variations on the comparative negligence defense, and it is not available in every state.

Comparative negligence is considered to be a modification of the much stricter doctrine of contributory negligence. In a contributory negligence defense, the plaintiff cannot recover any damages if they are even partly at fault. By contrast, a comparative negligence defense will only reduce the award by a certain amount.

What Is an Example of Comparative Negligence?

A common example involving comparative negligence is where a pedestrian negligently jaywalks across the street and then is struck by a car. Here, the driver of the car may be held liable, but the injured pedestrian may also be at fault because they were violating the law and acting negligently when the accident occurred.

In this example, the pedestrian’s damages award would be reduced by the percentage of their liability. If the jury finds that they were 25% liable for their own injury, their damages award will be reduced by 25%. So, if the damages would amount to $1,000, the figure would be reduced by 25% - or $250 - resulting in an award of only $750.

What Are the Different Categories of Comparative Negligence?

As mentioned, there are many variations of comparative negligence. In jurisdictions that do allow comparative negligence, they may apply one of three different categories:

  1. “Pure” Comparative Negligence
  2. “Modified” Comparative Negligence (51% Fault Rule)
  3. Modified Comparative Negligence (50% Fault Rule)

Recovery for the plaintiff is as follows:

  1. “Pure” Comparative Negligence: The plaintiff can recover damages with even if they are mostly at fault, even if they are 99% liable.
  2. “Modified Comparative Negligence - 51% Bar Rule: The plaintiff can recover if their liability is equal to or less than the defendant’s liability.
  3. “Modified Comparative Negligence - 50% Bar Rule:The plaintiff can only recover if their liability is less than the defendant’s liability.

These slight differences can often be the turning point for whether the plaintiff is eligible for a damages award or not, making the use of expert witnesses paramount in these types of cases.

Which Rule Does My State Apply?

12 states apply the Pure Comparative Negligence:

22 states follow the 51% Fault Rule:

11 states follow the 50% Rule:

These 4 states, as well as Washington, D.C., apply the Contributory Negligence Rule:

Finally, bear in mind that some states employ a mix of contributory negligence and comparative negligence. For example, South Dakota will only compare negligence if the defendant’s was “gross” and the plaintiff’s was “slight.” Also, even if the state allows comparative negligence, it may not be available as a defense for all types of claims. For example, comparative negligence is not available for workers compensation claims.

Do I Need a Lawyer?

Comparative negligence is a very complex legal defense. It involves several calculations and determinations, as well as expert testimony, and the rules are very different from state to state. However, these rules can determine your eligibility to recover a damages award, so you may consider contacting a lawyer if you need assistance. A qualified personal injury attorney in your area will be able to explain how these laws operate in your state.

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Last Modified: 05-28-2014 02:30 PM PDT

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