Defenses to Tort Liability: Comparative Negligence

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What Is ?Comparative Negligence??

Comparative negligence is a type of defense available in some personal injury cases. Most 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 such cases, the plaintiff’s damages award may be reduced in proportion to their own liability. This is known as the “Comparative Negligence” defense- 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 not every state allows comparative negligence defenses.

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; in 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 pedestrian may also be negligent because they had jaywalked across the street.

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% ($250), resulting in an award of only $750 ($1,000-$250).

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: “Pure” Comparative Negligence; “Modified” Comparative Negligence (51% Bar Rule); and Modified Comparative Negligence (50% Bar Rule). 

Recovery for the plaintiff is as follows:

These slight differences can often be the turning point for whether the plaintiff is eligible for a damages award or not. Since these liability calculations are so precise, it is often necessary to work with a special witness and a lawyer to determine the degree of liability. 

Which Rule Does My State Apply?

13 states apply the Pure Comparative Negligence version: AK, AZ, CA, FL, KY, LA, MI, MS, NM, NY, RI, SD, and WA.

33 states follow some form of the Modified Comparative Negligence theory.  Of these 33 states, 21 states follow the 51% Rule: CT, DE, HI, IL, IN, IO, MA, MI, MN, MT, NV, NH, NJ, OH, OR, PA, SC, TX, VT, WI, and WY.

12 states follow the 50% Rule: AR, CO, GA, ID, KS, ME, NE, ND, OK, TN, UT, and WV.

The remaining 5 states apply the Contributory Negligence Rule (AL, MD, NC, VA, and Washington D.C.)

Finally, bear in mind that some states employ a mix of contributory negligence and comparative negligence. Also, even if the state is a “comparative negligence state”, comparative negligence 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 for Assistance with Comparative Negligence Rules?

As you can tell, comparative negligence is a very complex legal defense. It involves several calculations and determinations, 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 wish to contact 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: 12-04-2013 03:09 PM PST

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