For most of our legal history, when both parties to an accident had some degree of fault, the legal principle of contributory negligence applied. In fact, contributory negligence is still the law in four states and the District of Columbia. Under the concept of contributory negligence, if an injured person contributed in any way to causing an accident, they may not recover for any injuries or other losses sustained.
When contributory negligence was the law of the land, the common strategy employed by defense attorneys was to look for any evidence of carelessness by the plaintiff (the person seeking compensation after an accident) and ask the court to dismiss the claim. That often led to patently unfair results where a grossly negligent defendant avoided liability because a plaintiff engaged in a seemingly meaningless, but technically negligent, act.
Because of that perceived unfairness, most legislatures across the country have replaced the doctrine of contributory negligence with that of comparative negligence.
Under the doctrine of comparative negligence, the jury first determines the full extent of the plaintiff’s losses. For example, in a car accident claim, the jury may award a million dollars for loss of income, loss of enjoyment of life, loss of consortium or companionship, unreimbursed medical expenses, and mental/physical pain and suffering.
Next, the court seeks to determine the extent to which both the plaintiff and defendant caused the accident. That degree of liability is commonly stated as a percentage of liability. For example, the jury may determine that the injured party was 25% responsible for causing the accident.
The damage award will be reduced by the plaintiff’s percentage of liability. The million-dollar verdict will be reduced to $750,000.
In some states, the concept of comparative negligence has been further refined as either “pure” comparative negligence or “modified” comparative negligence. Currently, 33 states follow the principle of modified comparative negligence, and 13 states adhere to the theory of pure comparative negligence.
In those 13 states that adhere to the pure comparative negligence approach, an injured person is entitled to recover in some amount unless they are found to be 100% liable. Accordingly, in those states that take a pure comparative negligence approach, a plaintiff who is 75% responsible for causing the accident will still be able to recover 25% of their losses.
Under the principle of modified comparative negligence, a plaintiff may not recover at all if their percentage of liability is at or above a certain amount. In 23 states, a plaintiff may not recover anything if they are deemed 51% responsible. In 10 states, the cap is set at 50%. In a modified comparative negligence state, a plaintiff who is 75% responsible for causing the accident will be unable to recover any damages.