Trial Lawyer’s Journal is built on the voices of trial lawyers like you. Share your journey, insights, and experiences through articles, interviews, and our podcast, Celebrating Justice.
Sign up for our newsletter to get the latest from TLJ.
Introduction:
Comparative negligence is a legal doctrine that addresses situations where both the plaintiff and the defendant share some fault for an accident. In personal injury cases, it determines how damages are allocated when multiple parties are to blame. People searching this term want to know how their own possible negligence (e.g., being slightly at fault for a car accident) might impact their ability to recover compensation. Key questions include: “Can I still recover damages if I was partly at fault?” and “How do courts calculate damages under comparative negligence?”
Under comparative negligence, each party’s degree of fault for the accident is assessed, usually as a percentage, and the plaintiff’s compensation is adjusted accordingly. This means a plaintiff can still recover damages even if they were partially responsible, but the recovery is reduced by their share of fault. For example, if a plaintiff is found 25% at fault for an accident and the total damages are $100,000, their award would be reduced by 25%, resulting in $75,000 received.
Comparative negligence is a modern replacement for the older rule of contributory negligence in most places. Contributory negligence (still used in a few states) is much harsher: if the plaintiff is even 1% at fault, they recover nothing. Comparative negligence, by contrast, allows proportional recovery, which is generally seen as more equitable.
Not all states handle comparative negligence in the same way. There are two main forms of comparative negligence, plus the contributory negligence rule in a minority of jurisdictions:
It’s crucial to know which rule your state follows, as it directly affects your legal strategy and settlement expectations.
Determining the percentages of fault is usually the job of the jury (or a judge in a bench trial). During a trial, each side will present evidence and arguments about how the accident happened and who was responsible for what:
In settlement negotiations, the same concept applies informally. Insurance adjusters will assess comparative fault when evaluating claims. If they believe your actions contributed to the accident, they will reduce their settlement offers proportionally. Plaintiffs’ attorneys must counter or account for these arguments.
Comparative negligence can significantly impact how a case is handled:
Comparative negligence ensures that liability (and financial responsibility) in personal injury cases is distributed fairly according to each party’s share of the blame. For plaintiffs, this doctrine is generally favorable compared to older contributory negligence rules, because it means being partly at fault doesn’t automatically bar recovery. However, your percentage of fault will proportionally diminish your compensation, so the goal in any claim is to maximize the fault attributed to others and minimize your own. Understanding your state’s specific rule (pure vs. 50%/51% modified) is crucial, as it determines the threshold of recovery. Always discuss with your attorney how fault might be apportioned in your case. They can give you a realistic assessment of how comparative negligence might play out and strategize accordingly – whether it’s gathering additional evidence to reduce your perceived fault or advising you on a fair settlement in light of shared fault. In all instances, being honest about any contribution you had in an accident and addressing it head-on will put you in the best position to secure the compensation you deserve under the law.
Yes, in most states with comparative negligence, you can recover damages even if you were partly at fault, as long as your share of fault isn’t too high. Your compensation will be reduced by your percentage of fault. For example, 20% fault means you get 80% of your damages. Only a few states (contributory negligence states) bar recovery completely if you had any fault.
Comparative negligence allocates fault between parties and reduces the plaintiff’s recovery by their percentage of fault, whereas contributory negligence is an older doctrine that completely prohibits the plaintiff from recovering anything if they were even 1% at fault. Comparative negligence comes in two forms (pure and modified with 50/51% bars) allowing partial recovery, while contributory is all-or-nothing and is only used in a minority of jurisdictions today.
Fault percentages are usually determined by a jury (or judge in a bench trial) after hearing all the evidence. Each side presents evidence of the other’s negligence, and the jury assigns a percentage of blame to each party totaling 100%. This can involve reviewing accident reports, expert testimony, and witness accounts. In negotiations, insurance adjusters make their own fault assessments to guide settlement offers. If a case goes to trial, jurors might, for example, decide a plaintiff was 30% at fault and the defendant 70% – the court would then reduce the plaintiff’s damages by that 30%.
Only a few still follow contributory negligence: Alabama, Maryland, North Carolina, Virginia, and Washington D.C. are notable examples. The vast majority of states use some form of comparative negligence. Approximately one-third of states (including California, New York, Florida) use pure comparative negligence, allowing recovery even if the plaintiff is very mostly at fault. The rest use modified comparative negligence with a 50% or 51% cutoff (for example, Texas and Georgia use 51% bar, while Tennessee and Arkansas use 50% bar). It’s important to check your own state’s law to know the rule that will apply to your case.
What is Negligence in a Personal Injury Case? Introduction: Negligence in a personal injury case refers to a person’s failure to exercise reasonable care.
What Is a Contingency Fee in a Personal Injury Case? Introduction:A contingency fee is a payment arrangement between a lawyer and client where the.
What is Fault Determination? Introduction: “Damages” in a personal injury case refer to the money awarded to an injured plaintiff to compensate for losses.
Discover Next
Learn from industry experts about key cases, the business of law, and more insights that shape the future of trial law.