Blogs by PROD: Types of Comparative Negligence
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IntroIf you have dealt, or are dealing with, an automobile accident involving another vehicle, you will have likely heard of the term “comparative negligence”. Comparative negligence is a tort rule for allocating damages when both parties are at least somewhat at fault. In a situation where both the plaintiff and the defendant were some degree of negligence, the jury allocates fault, usually as a percentage (for example, a jury might find that the plaintiff was 20% at fault and the defendant was 80% at fault). Then each pays their share of the other's damages (in the above example, the plaintiff pays 20% of defendant's damages, and defendant pays 70% of plaintiff's damages). This blog will outline the various types of comparative negligence. For more general overview on this topic, please check out one of our previous blogs on the subject.
Types of Comparative NegligenceThe first type we will outline is “pure comparative negligence”. The pure comparative negligence rule allows the plaintiff to recover damages even if they are assigned 99% fault for the accident. In such a case, the plaintiff can still recover 1% of the damages assessed from the defendant. Thirteen states, including California and New York, follow this rule.
This type of rule is designed because it can be difficult to apportion fault amongst defendants, especially if the wreck involves a pileup/more than two vehicles. This means it can be complicated to determine an accurate award of damages. A pure comparative negligence system of recovery attempts to resolve issues of determining recovery when multiple defendants are involved.
The next is “modified comparative negligence”. This rule disallows plaintiffs from recovering monetary damages if they are determined to be at fault beyond a certain percentage. Ten states, including Colorado and Maine, follow the 50% bar rule. This means a plaintiff is not allowed to recover damages if their fault percentage for an accident is 50% or more. Twenty-three states, including Illinois and Oregon, follow the 51% bar rule, meaning plaintiffs cannot recover if their fault percentage is 51% or greater.
The final type is only recognized in South Dakota; the slight/gross negligence rule. In this rule, fault percentages assigned in an accident are replaced by "slight" and "gross" contributions to an accident. Gross, in this context, means reckless and conscious disregard for the injured party's safety. In effect, the amount of an award in an accident is greater if a plaintiff's contribution to an accident is slight and the defendant's contribution is gross.
Conversely, the injury amount awarded to a plaintiff is less if their contribution to an accident was more than "slight." As an example, if a car that jumped a traffic signal injures a jaywalker, then the jaywalker will be awarded less in damages than if they were crossing a green traffic light.
Four states, including Maryland and Alabama, and one jurisdiction, Washington D.C., follow the pure contributory negligence rule.1
In this rule, a plaintiff is barred from recovering damages if they contributed even slightly to an accident.