Comparative Negligence

Comparative negligence attempts to individualize accident recoveries by placing the economic burdens on each party in proportion to their percentage of fault. For example:

If a plaintiff suffers $100,000 worth of injury and the jury finds that defendant was 80% at fault and the plaintiff was 20% at fault, the plaintiff would recover $80,000 of her damages.

There are two types of comparative negligence that are used when assessing liability: Pure comparative negligence and partial comparative negligence.

Pure comparative negligence allows the plaintiff to recover even if his negligence is greater than defendant’s negligence. For example, where plaintiff has suffered $100,000 worth of damage, but his own negligence contributed to 90% of his injuries, plaintiff will be allowed to collect $10,000 under a pure comparative negligence theory. See Li v. Yellow Cab, 13 Cal. 3d 804 (1975).

Partial comparative negligence, which most jurisdictions apply, completely bars recovery if plaintiff’s negligence exceeds a certain threshold.

Some states will deny the plaintiff recovery if his negligence is equal to or greater than the defendant’s negligence. Therefore, if a jury finds that the plaintiff is either 50% responsible for his injuries or more, the plaintiff will be completely barred from recovery. Anything less than 50% responsibility and the plaintiff will be entitled to recover that percentage of the damage. For example:

Dave is an avid bungee jumper who goes jumping whenever he can. He has been planning a trip for several weeks to Schnipper’s Cliff and he buys new gear for the trip. When he gets to the top of the cliff and unpacks his gear, Dave notices that the new bungee cord he has bought is frayed. Dave knows that using a frayed cord is not safe but he decides to risk it anyway. Sure enough, the cord snaps on Dave’s first jump and he is severely injured. Dave sues the cord manufacturer who determines that Dave has suffered $100,000 in damages. However, if the jury decides that Dave is 50% responsible or more for his own injuries he will not be able to recover anything. However, if the jury determines that the cord manufacturer was more than 50% responsible, Dave will recover the percentage of his injuries that the company was responsible for (ex: if the cord company is 60% responsible, Dave will recover $60,000.)

Some jurisdictions have a slightly different view and will allow the plaintiff to recover where there is a 50/50 split in the finding of negligence. Thus, where, under the previous view, Dave would be barred from recovery if the jury found him 50% at fault. Under this view, Dave will be able to recover $50,000 if he is 50% at fault. Only a finding of fault greater than 50% will completely bar recovery.

In a situation where there are several defendants who are negligent, most states follow the partial approach which holds that plaintiff’s negligence must be less than any one of the defendants.

Therefore, if three defendants act negligently in harming the plaintiff and it is determined that each defendant is 20% liable and the plaintiff is 40% liable, the plaintiff will be barred from recovery since his percentage of negligence is greater than that of any defendant.

If the defendants are jointly or severally liable, then each defendant is liable for 100% and the partial approach will not apply.

However, some states allow the plaintiff to aggregate defendants’ percentages and, if the plaintiff’s negligence is less than the aggregate of the defendants’ negligence, the plaintiff will be able to recover. Thus, if three defendants are negligent in harming the plaintiff, and each defendant is found to be 20% negligent, the courts will aggregate this so that the defendants are 60% negligent whereas the plaintiff is only 40% negligent. This will allow plaintiff to recover.

Finally, a plaintiff’s unreasonable failure to mitigate damages caused by the defendant’s negligence will serve to decrease the plaintiff’s damages but it will not bar recovery. For example:

Where the defendant negligently crashes into the plaintiff’s car, and the plaintiff was not wearing his seat belt at the time of the accident, and wearing the seat belt could have mitigated the damages caused by the defendant’s negligence, if a jury finds that not wearing his seat belt was an unreasonable failure to mitigate damages, this will decrease the plaintiff’s recovery.