Negligence: The Legal Definition
When it comes to negligence, you need to understand the associated legal terms that will be used. Each state has different laws regarding contributory, comparative, pure comparative, and modified comparative negligence. Some states bar recovery with just 1% of fault by plaintiff (contributory negligence), and others reduce the recovery based on the percentage of fault (comparative negligence). Some states are pure comparative states, while others are modified comparative states.
It is important to be aware of the various exceptions that may also apply, depending on the state, concerning the fault allocation scheme and whether it may be applicable to a cause of action. The application of the scheme to negligence claims is limited in some states and not applied to product liability cases. Other states have specific modification rules and effective dates for the application of the scheme. If you want to make the best choices for your subrogation claim, it helps to fully understand your state’s comparative fault laws.
Comparative fault systems fall into one of three basic types: pure contributory negligence, pure comparative fault, and modified comparative fault (sometimes referred to as “proportionate responsibility”). The comparative fault standards for the 51 jurisdictions break down as follows:
There are three basic types of comparative fault systems. These include pure contributory negligence, pure comparative fault, and modified comparative fault (or proportionate responsibility). To get an idea of the comparative fault standards for each of the 51 jurisdictions, view the following lists, and consult a personal injury lawyer.
Pure Contributory Negligence States
The following jurisdictions have Pure Contributory Negligence Rules:
- District of Columbia
- North Carolina
Pure Contributory Negligence Rules state that if the injured party is even 1% at fault for the accident, he or she can recover nothing. It is possible to overcome this defense by providing clear evidence that the defendant caused the accident with willful and wanton negligence or if it is proven that the defendant that the final and apparent opportunity to avoid the accident and did not.
Pure Comparative Fault States
The following jurisdictions have Pure Comparative Fault Rules:
- New Mexico
- New York
- Rhode Island
- South Dakota
Pure Comparative Fault Rules allow an injured person to recover damages even if he or she is as much as 99% at fault for the accident. The recovery amount is simply reduced by the percentage of fault that is held by the injured person. Thus, if the recovery might be $10,000 and the injured person is 50% at fault, then he or she would have their recovered damages reduced by half ($5,000).
Modified Comparative Fault States
Modified Comparative Fault Rules are governed by different perspectives regarding the amount of recovery possible. There is the 50% Bar Rule and the 51% Bar Rule.
50% Bar on Modified Comparative Fault
The following jurisdictions have 50% Bars on Modified Comparative Fault Rules:
- North Dakota
- South Carolina
- West Virginia
With the 50% Bar Rule one cannot recover any damages if he or she is 50% or more at fault for the accident. If he or she is 49% at fault or less, then damages can be recovered and reduced by the percentage of fault.
51% Bar on Modified Comparative Fault
The following jurisdictions have 51% Bars on Modified Comparative Fault Rules:
- New Hampshire
- New Jersey
With the 51% Bar Rule, one cannot recover damages if he or she is 51% at fault or more. At 50% fault or less, damage can be received and reduced by the percentage of fault.
Differences in Jurisdictions
In jurisdictions with pure contributory negligence rules, it doesn’t matter if the plaintiff only contributed to the accident with 1% fault. He or she will get nothing due to any amount of negligence. In jurisdictions with comparative negligence rules, one can recover their damages after reducing them by their own percentage of fault in the accident.
When it comes to comparative negligence, different states do things differently. In some, the injured party can recover half of their damages if they are 50% at fault. In others, he or she cannot recover anything if they are 50% at fault. Many find that this is unfair because 1% of fault makes all the difference between recovering half of the damages and recovering nothing at all. This is why some states draw the line at 51% instead. Thus, anyone who is more than 50% at fault can recover nothing, while being 50% at fault allows the person to recover half of their damages.
Example: Modified Comparative Fault Rules In Texas
Texas is one of 33 states that use a Modified Comparative Fault Rule. In Texas, a person who is injured in an automobile accident will be able to recover damages as long as he is no more than 50% at fault. In Texas, this is called proportionate responsibility. If the plaintiff holds more than half of the responsibility for his own injuries, then he or she cannot recover damages. If Texas were a pure comparative fault jurisdiction, then the plaintiff could recover a percentage of the damage, even if he or she were 90% at fault. The amount recovered would simply be reduced by 90%.
Role of Jury In Comparative Negligence Case
The role of a jury in a comparative negligence case is to determine what percentage of responsibility should be placed on each plaintiff, defendant, and/or other responsible party (like an employer). The jury hears the evidence and assigns a percentage of fault to each party which will then determine the amount of damages that can be recovered by the plaintiff. If the plaintiff has $10,000 in damages to recover, but was 10% at fault for the accident, then he or she can only recover $9,000 with the 10% of fault subtracted from the original recovery amount.
Joint and Several Liability Rule
One thing that used to make comparative fault rules a bit more complicated was the joint and several liability rule that placed liability for all of the plaintiff’s damages on each defendant, regardless of the percentage of fault of each party. This means that (up until 1995) if there were multiple defendants, the plaintiff could recover 100% of damages from any of the defendants, even if one was only 15% at fault.
Modified Joint and Several Liability Rule
In 1995, the modified joint and several liability rule changed things by making the defendants responsible only for their percentage of fault in the case, unless he or she was over 50% responsible. In the case where one defendant is more than 50% responsible for the accident, that defendant can be made to pay the full amount of damages to the plaintiff. If he or she is less than 50% responsible for the accident, then the plaintiff can only recover the percentage of damages that he or she is responsible for and must turn to the other defendants for the remainder of the recovery.
Every state is different when it comes to comparative fault rules and joint and several liability laws, so it is important to understand the differences that may relate to the subrogation of your case.