Many personal injury cases are based on the legal theory of negligence. When a person or entity owes others a duty to act reasonably and fails to do so, the injured party may be able to pursue a lawsuit in civil court. Negligence has a long history in American common law, and over time, exceptions and defenses have developed to fairly deal with more complicated circumstances.
One of the most important of these is the defense of comparative or contributory negligence. It lets a judge or jury to consider the plaintiff’s fault in an accident instead of just the defendant, and allows them to reduce monetary compensation, or in some cases, deny it altogether. Here is a short explanation of what comparative and contributory negligence are and how they can affect personal injury cases.
What Is Negligence?
Civil tort law generally breaks causes of action into two categories: intentional (like assault or battery) and unintentional. Among the unintentional torts in American law, negligence is one of the most common, cited in a wide number of personal injury situations. These include car accidents, slip and fall accidents, medical malpractice, dog bite cases, and more. This is because the components of negligence can be applied to a number of circumstances.
While every state might define the term a little differently, all jurisdictions adhere to are five basic elements for a negligence lawsuit. One, that a duty of care is owed from defendant to the plaintiff. Two, that due to a breach of that duty, the defendant was injured. Three and four, that the breach was both the actual cause of the injury, and the potential harm was foreseeable. And finally, the plaintiff can show actual damages that they suffered as a result of the incident.
What Is Contributory Negligence?
Contributory negligence is the older version of the two and dates back to English common law. This doctrine states that if the plaintiff is deemed to be at all negligent in the incident at issue, they cannot recover any damages from the defendant. This is known as a total bar. So, if a jury or judge finds that a plaintiff was even one percent at fault for the accident, they get nothing.
This is certainly an extreme approach, and over the years it has been steadily replaced with other rules in most states. The only jurisdictions that still use pure contributory negligence are Maryland, Washington D.C., Alabama, North Carolina, and Virginia.
What Is Comparative Negligence?
The rest of the states use one of the modern approaches to damage reduction in negligence cases. These are known as comparative negligence. Examples of these are:
- Pure Comparative Negligence. This theory does not bar a plaintiff from recovery, even if the judge or jury finds that the plaintiff is 99 percent at fault for the accident at issue. The amount they can receive in monetary damages is reduced by their fault percentage. For example, if a plaintiff sues someone for $100,000 but is found to be 80 percent at fault, they may still be able to receive $20,000 in damages. There are 13 states that follow this rule: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington.
- Modified Comparative Negligence (50% Rule). This approach bars plaintiff recovery if they are found to be 50 percent or more at fault for the accident in question. If they are deemed to be 49 percent or less negligent, they can still recover damages. Like pure comparative negligence, though, their recovery is reduced by their fault percentage. States that use this approach are Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, South Carolina, Tennessee, Utah, and West Virginia.
- Modified Comparative Negligence (51% Rule). Here the same rule applies as above, but the percentage of plaintiff negligence that bars recovery is slightly higher. The damaged party can recover if the judge or jury deems that they are 50 percent (or lower) responsible. While the number difference between the two approaches is minute, the idea is that when the plaintiff and defendant share the blame equally, the injured party should still be able to seek compensation, even if the amount will be reduced. The states that use the 51 percent rule are Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, Wisconsin, and Wyoming.
A few states may use a combination of these, so be sure to talk to an injury attorney when considering legal action, as these recovery rules might affect what approach is best for your situation.
Do I Need An Attorney For My Negligence Case?
Any legal matter can quickly become complicated, and this can be especially stressful when you are dealing with injuries, medical bills, and facing the prospect of lost work. That is why when you are considering legal action against someone else for a negligent act, you should seek out the services of an experienced personal injury attorney in your area.
They can assess your case, help you plan a proper legal strategy for recovery, and be your advocate every step of the way while you seek full and fair compensation.