Comparative Negligence and Personal Injury Lawsuits

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 15, 2021

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If you are filing a personal injury lawsuit, the opposing party may assert a legal defense known as comparative negligence. A comparative negligence defense argues that the injured party’s own carelessness contributed to the accident – meaning the defendant was not entirely responsible for the injuries suffered.  If a judge or jury finds that your own negligence contributed to your injuries, you risk losing out on all of, or part of, the money you are seeking.

TIP:  Comparative negligence defenses are not uncommon – consult an experienced personal injury attorney to help overcome claims that your own action contributed to your accident.

Comparative Negligence Examples

The concept of comparative negligence can be fairly difficult to picture, so consider the following examples:

  • Imagine person A is speeding while driving. Driver B suddenly moves into A’s lane without signaling, and driver A collides with B. Driver A may be held responsible for harm to driver B or to his vehicle, but A’s liability may also be reduced because driver B negligently failed to use his blinker.
  • In a slip and fall accident, person A is walking through an icy parking lot owned by person B.  Person A notices ice, thinks she can walk over it, but falls and injures herself.  Even if person B was aware of the ice and should have cleaned it up, person A’s failure to avoid the ice may impact her ability to recover for the injuries.
  • Person A is hit by a car driven by person B.  Person A was in the road at night and not crossing at a light or a cross walk.  Person B may be responsible for the injuries, but person A could be negligent because his decisions while crossing created a dangerous situation.

Comparative negligence often depends on state law and the particular events of the accident, so each case will be different.  An experienced attorney will be able to evaluate your case and advise you on how to respond to a comparative negligence defense.

How Comparative Negligence Affects Damages

The defense of comparative negligence is important because it can affect how much a party will ultimately pay in damages.  A judge or a jury will assign what percentage each party is at fault and damages will be paid out accordingly. In the first of the above examples, a court might decide that A was only 60 percent at fault, instead of completely at fault, and that driver B was 40 percent at fault. That means A might be liable for only 60 percent of the total damages awarded to the other driver. Moreover, driver B may be responsible for paying 40 percent of damages done to A.

Usually, the party that is more at fault will simply pay the difference to the lesser fault party.  Continuing the example above, if the damages for the accident totaled $10,000 – with A owing $6,000 and B owing $4,000 – person A would have to pay $2,000 to B.  Of course, it is rarely that simple, particularly when insurance companies get involved, but the examples are designed to make the concept understandable.

Pure or Modified Comparative Negligence

Forty-five states use some form of comparative negligence, either in its pure or modified form. Pure comparative negligence refers to the fact that a party can recover damages even if it is considered 99 percent at fault. In these cases, the party’s damages are simply reduced by 99 percent. Currently, 13 states used the pure comparative standard including Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington.

The remaining states follow the modified comparative fault rule where being 50 percent at fault (12 states), or 51 percent at fault (21 states) is enough to prevent the possibility of recovery – meaning that if your percentage of fault is greater than the allowable percentage, you cannot bring a lawsuit. If your percentage of fault does not prevent your suit, then your damages will be distributed as described above.

Difference Between Contributory and Comparative Negligence

Depending on where you live, you may hear the term contributory negligence instead of comparative.  Contributory negligence is considered more severe than comparative negligence because under this law, any negligence at all on the part of the plaintiff, even one percent, is enough to constitute a complete defense for the defendant against the plaintiff’s claim. This means that if your injury is at all your fault, then you cannot bring a personal injury lawsuit.

Very few jurisdictions still employ contributory negligence law, and currently only Alabama, the District of Columbia, Maryland, North Carolina, and Virginia recognize contributory negligence instead of comparative.

Getting Help with Comparative Negligence Cases

If you are involved in a negligence lawsuit, it is important to seek the advice of a qualified attorney who has experience with comparative negligence claims. 

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