Personal Injury, Probate, Employment, & Complex Litigation


Comparative Negligence

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A lot of times you will hear attorneys or pundits on TV talk about contributory negligence. How, the Plaintiff was at fault as well as the Defendant. What most attorneys/pundits fail to state is what the implication of contributory negligence is.

Contributory negligence is the concept that if the Plaintiff was at all liable for the causation of their own injuries, then they cannot recover. This is a dreadful rule that allows the Defendant that is 99% liable escape from paying for the damages they cause simply because the Plaintiff did not act perfectly. Dumb rule.

It is so dumb that most jurisdictions don’t follow that rule, and instead follow a comparative negligence rule. Now, because this is the law there isn’t a simple Contributory Negligence v. Comparative Negligence split of jurisdiction. No, that is too easy. There is also a split between what is called “pure comparative negligence” and “modified comparative negligence.” California is the former but I will explain the latter first.

Modified comparative negligence is the concept that the jury apportions the blame of an accident between the Defendant and the Plaintiff (assuming the Defendant pleads comparative negligence) and the jury award is reduced by the apportionment. That makes sense. But, if the Jury finds that the Plaintiff is 50.1% at fault (there is actually yet another sub-divisional split among jurisdictions whether the cutoff point is 50/50 or 51/49 but I am not going to get into that here) for the Plaintiffs injuries, then the Plaintiff cannot recover from the Defendant. This sounds like a much better rule than contributory negligence. And, if you thought that this rule sounds fair, I wouldn’t blame you, but you would be wrong. This rule is still bad and is still unfair to the Plaintiff. Yes, they are the majority cause of their own injuries, but the Defendant is still substantially at fault and should have to pay for the amount they are at fault.

That is essentially what pure comparative negligence is and that is the rule that California has adopted. The jury apportions the blame between the Defendant and the Plaintiff and the Plaintiff’s damages award is reduced by the amount they are at fault. By way of example, if they award Plaintiff $100,000.00 in damages but then also find the Plaintiff 60% at fault, then the Plaintiff’s award is reduced to $40,000.00.

Now, a tricky thing is that juries have a tendency of ignoring the actual rule of law and imposing the reduction themselves onto the damages award. That is not what they are supposed to do and can result in an unfair result (using the same facts as above, the ultimate Plaintiff award would be $16,000.00 instead of the intended $40,000.00). It takes a good attorney to carefully explain the instructions to the jury to ensure they don’t mess it up.

Finally, you may be thinking to yourself that in every case there is someone at fault and an innocent person. This is not always the case. Imagine a scenario in which a motorcyclist is going the speed limit of 65 MPH on the freeway splitting lanes while the lanes around them are traveling at only 40 MPH. All of a sudden, the Defendant swerves into the next lane right as the Plaintiff was approaching their vehicle. The motorcycle can’t stop in time and the Plaintiff flips over the handlebars and breaks their spine upon impact with the concrete. Who is at fault? Well, the logical answer is both. What is their percentage of liability for this accident? That is a much tougher question and one that the jury has to decide.