Negligence is the failure to use care an ordinary person would use in the same or similar circumstances. The elements used to prove negligence are duty, breach of duty, causation, and defenses. The defendant has a defense to a negligence claim such as comparative fault.
What Is Comparative Negligence?
Comparative negligence, also referred to as comparative fault, compares the plaintiff’s negligence against the defendant’s negligence. If the plaintiff contributed to their own injury, but wins the overall claim, any award that they receive is reduced by the amount that they were negligent.
How Are Awards Reduced in Comparative Negligence?
Comparative negligence is reduced by a percentage based on the amount of the plaintiff’s own negligence. For instance, assume that a plaintiff who negligently jaywalked across the street and was hit by the defendant’s car receives a jury award of $100,000. The defendant uses comparative negligence as a defense. The plaintiff is found to be 30 percent negligent for their own injury because they negligently jaywalked. Their award is reduced to $70,000.
What Are the Different Forms of Comparative Negligence?
The type of comparative negligence available to a defendant depends on the jurisdiction that the lawsuit is in. The three types of comparative negligence that exist are:
- Pure Comparative Negligence: The plaintiff can receive money even if they are 99 percent liable.
- 51 Percent Negligence: This modified comparative negligence allows a plaintiff to recover damages if they were 51 percent or less liable for the accident.
- 50 Percent Negligence: This is another type of modified comparative negligence where the plaintiff only recover damages if they are less than 50 percent liable for the overall negligence.
How Is Contributory Negligence Different from Comparative Negligence?
Contributory negligence is a defense that treats a plaintiff’s own negligence as a complete bar to an award. In other words, if a plaintiff is found negligent, they cannot recover any damages. In contrast, comparative negligence only reduces the award by a percentage and still permits a plaintiff to recover some damages.
Should I Talk to an Attorney about Comparative Negligence?
If you are facing a negligence lawsuit, you should discuss the possibility of raising the comparative negligence defense with a personal injury attorney. Your attorney will give you advice on if you can use comparative negligence as a defense in your lawsuit.