What is Comparative Negligence and How Is It Determined?

What is Comparative Negligence and How Is It Determined?
Calendar icon January 25, 2024

When it comes to personal injury law, the concept of comparative negligence often plays a crucial role in determining the outcome of a claim. This doctrine can influence the amount of compensation you might be entitled to after an accident. 

Whether you’re a driver involved in a collision, a shopper who slipped and fell on a wet floor, or a pedestrian struck by a cyclist, understanding comparative negligence is pivotal to navigating your legal rights and responsibilities. In this post, we’ll unravel the intricacies of comparative negligence and how it is determined, ensuring you are well-informed about your potential personal injury claim. 

What Is Comparative Negligence?

Comparative negligence, also known as comparative fault, is a legal concept used to determine fault among the parties involved in an accident. When an accident occurs, it’s possible that both the plaintiff (the injured party filing the lawsuit) and the defendant (the party accused of causing the injury) have contributed to the cause of the accident in some way. Comparative negligence aims to fairly distribute the blame and adjust the compensation awarded accordingly.

What Is Contributory Negligence?

Under the traditional rule of contributory negligence, if a plaintiff was found to be partially at fault for an incident, they could be barred from recovering any compensation. Recognizing the harshness of this all-or-nothing approach, most states have adopted some form of comparative negligence, allowing plaintiffs to recover damages even if they were partially at fault, with their recovery reduced to reflect their share of the blame.

Types of Comparative Negligence

There are generally two types of comparative negligence:

Pure Comparative Negligence

New York applies the pure comparative negligence rule. In states that follow the pure comparative negligence rule, a damaged party can still recover compensation regardless of their percentage of fault, even if their responsibility exceeds that of the other party. For example, if you were 80% at fault for an accident and the other party was 20% at fault, you could still recover 20% of your damages from that party.

Modified Comparative Negligence

Modified comparative negligence is more commonly applied across the U.S.  This approach sets an “at fault” threshold that a plaintiff must be below in order to recover any damages. The two main thresholds are 50% and 51%. In a 50% bar state, you can recover damages if you were 49% or less at fault; in a 51% bar state, you must be 50% or less at fault in order to recover damages.

How Is Comparative Negligence Determined?

Determining comparative negligence is a complex process that illustrates why working with a skilled personal injury attorney is crucial. The determination involves various steps and considerations:
Evidence Gathering: After an accident, evidence such as eyewitness testimonies, police reports, surveillance footage, and physical evidence at the scene is collected to establish the facts.

Establishing Duty and Breach: It’s essential to determine if the defendant owed a duty of care to the plaintiff and if that duty was breached. For instance, drivers have a responsibility to obey traffic laws, and failing to do so could constitute a breach.

Causation and Harm: The plaintiff must prove that the defendant’s breach of duty directly caused or contributed to the plaintiff’s injuries, and that tangible harm (physical injuries, financial losses, etc.) resulted from the defendant’s negligence. 

Application of Comparative Fault: Once the evidence is evaluated and the factors of duty, breach, causation, and harm are established, the degree of fault for each party is considered. This is often presented in terms of percentages. Expert witnesses and accident reconstruction specialists might be brought in to offer professional insights that can sway the determination of comparative negligence.

Adjustment of Damages: In addition to establishing the level of fault, the total amount of damages also must be calculated. Then, the plaintiff’s recovery is reduced in proportion to their degree of fault.

Jury or Judge Decision: In the event that the insurance company does not issue a fair settlement for the damages sustained by either party, your attorney may recommend taking the claim to trial. In a trial, a jury or judge will ultimately decide the degree of fault assigned to each party based on the presented evidence.

Factors That Can Impact Comparative Negligence Determinations

Of course, in some instances, determining negligence is not always cut and dry. It’s important to keep in mind that the following factors can have an impact on how fault is determined.

State Laws: As each state has its own negligence laws, the determination process can vary significantly. Some states may permit recovery even if you are 99% at fault, while others bar recovery if you are over 50% responsible. It’s imperative to understand the specific laws of the state where your accident occurred. An experienced personal injury attorney can help you do so.

Type of Evidence: The quality and quantity of evidence can greatly affect the outcome, which is why it is so important to take photos and videos immediately after the accident if you are able to do so. Clear, indisputable evidence will lead to a more definite determination.

Witness Credibility: The reliability and credibility of witnesses can also play a significant role. Inconsistent statements or biases can diminish the effectiveness of a witness’s testimony.

Plaintiff’s Actions: The person bringing forth the claim will also be evaluated.  A claimant or plaintiff’s behavior at the time of the accident (e.g., wearing a seatbelt, using a mobile phone, etc.) will be scrutinized and can influence the fault determination.

Defendant’s Actions: Similarly, the nature of the defendant’s actions during the incident can either mitigate or exacerbate their level of fault. For example, a defendant who did everything in their power to avoid an accident might be less at fault than a defendant who acted negligently and thereby caused a collision.

Seeking Legal Help

If you’ve been involved in an accident, navigating the complexities of comparative negligence can be a daunting task. An experienced personal injury attorney not only understands the nuances of comparative fault, but also knows how to effectively collect and present evidence to ensure that a fair determination is made.

At Cellino Law, our team of dedicated lawyers has the experience and the resources needed to handle the intricacies of comparative negligence and demonstrate your right to recovery in a personal injury case. We understand the critical nature of determining fault and are committed to vigorously defending your right to fair compensation. If you or a loved one has been involved in an accident, don’t navigate the challenging legal waters alone. Contact Cellino Law at (888) 888-8888 or contact us online for a consultation that can make all the difference in your case.



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