What happens if both plaintiff and defendant are at faulty but perhaps at a varying degree? Who becomes liable for the plaintiff’s injury? Or will they both be liable? These questions led different state legislators to come up with different negligence rules to determine who should recover and how much. Many states have different comparative negligence laws about how much a defendant must be at fault in order for a plaintiff to recover in a civil court and whether the recovery should be at 100% or at the exact percentage of the defendant’s fault. Some states adopted pure comparative negligence laws while others have adopted modified comparative negligence laws whether a defendant’s fault must be greater than a plaintiff’s for the plaintiff to recover 100% of the damage. Some jurisdictions have also adopted a contributory negligence law where a plaintiff recovers nothing if the plaintiff is at fault partially. So let’s talk about these different negligence laws including California, where I practice law as a plaintiff’s personal injury lawyer in Sacramento.
Pure Comparative Negligence
Pure comparative negligence law allows plaintiffs to be able to recover whatever the exact percentage of defendant’s fault in a case. So if a plaintiff was 20% at fault and a defendant was 80% at fault, the plaintiff will recover 80% of the damage he or she suffered, which is 20% deducted from 100%. California follows this approach and has adopted the California comparative negligence statute. In states like California, an auto accident attorney must pay closer attention to expected fault ratio and fight to reduce the represented party’s fault.
Modified Comparative Negligence
Some states have adopted a modified comparative negligence law where a plaintiff can recover so long as the plaintiff’s fault is less than the defendant’s. Different states have adopted different percentage rate of fault of a plaintiff to allow recovery.
– Modified Comparative Negligence 50% Bar Rule
States that have adopted the 50% bar rule basically bars recovery if the plaintiff is at fault for 50% or higher. So the plaintiff’s fault must be at 49% or lower in order to recover.
– Modified Comparative Negligence 51% Bar Rule
States that have adopted the 51% bar rule basically bars recovery if the plaintiff is at fault for 51% or higher. So the plaintiff’s fault must be at 50% or lower in order to recover.
In some states including Washington DC, contributory negligence law is adopted to bar any recover of a plaintiff if the plaintiff is at fault no matter how much it is. For example, if a plaintiff is at fault 10%, there is no recovery. This rule seems harsh on plaintiffs that they cannot recover given that in auto accident cases, it is quite common that plaintiffs may slightly at fault but nevertheless defendants should still be responsible.
More information about comparative and contributory negligence can be found at Nolo and Laws.com. To see what rule each state has adopted, refer to this comparative / contributory negligence jurisdiction map.
Litigation Strategies in Different Jurisdictions
As an auto accident lawyer, I can see that above negligence rules have a huge impact and strategizing cases accordingly to argue fault or lack thereof becomes critical. It would be a malpractice not do prepare a case without such rules in mind. In comparative negligence states, an attorney must try to argue that his or her plaintiff client was not at fault using related facts so that the damage award can be maximized without having to pay a portion of fault by the plaintiff. In modified comparative negligence jurisdictions, an attorney must strategize on a case to argue that the plaintiff is lesser at fault than its defendant while conceding to a slight fault does not make a difference in terms of recovery since the plaintiff can recover so long as the defendant is more at fault according to the details of the specific rule in the jurisdiction.