Comparative negligence, called non-absolute
contributory negligence
In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
outside the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury.
When the defense is asserted, the factfinder, usually a jury, must decide the degree to which the
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
's negligence and the combined negligence of all other relevant actors all contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence that disallows any recovery by a plaintiff whose negligence contributed even minimally to causing the damages.
Types of comparative negligence
Prior to the late 1960s, only a few states had adopted the system. When comparative negligence was adopted, three main versions were used. The first is called "pure" comparative negligence. Under this type of comparative negligence, a plaintiff who was 90% to blame for an accident could recover 10% of his losses.
The second and third versions are lumped together in what is called "modified" comparative negligence. One variant allows plaintiffs to recover "only" if the plaintiff's negligence is "not greater than" the defendant's. In some states this threshold is 50 or 51%.
The other variant allows plaintiffs to recover "only if" the plaintiff's negligence is "not as great as" the defendant's (the plaintiff's negligence must be less than 50% of the combined negligence). The apparently minor difference between the two modified forms of comparative negligence is thought by lawyers handling such cases to be significant, as juries who ordinarily assign degrees of fault are much less willing to award damages to a plaintiff who is equally at fault than to one who is less at fault than the defendant.
Contributory negligence doctrine
Some states, though, still use the
contributory negligence
In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
doctrine to evaluate negligence in a tort. For instance,
Alabama
(We dare defend our rights)
, anthem = "Alabama (state song), Alabama"
, image_map = Alabama in United States.svg
, seat = Montgomery, Alabama, Montgomery
, LargestCity = Huntsville, Alabama, Huntsville
, LargestCounty = Baldwin County, Al ...
,
Maryland
Maryland ( ) is a state in the Mid-Atlantic region of the United States. It shares borders with Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware and the Atlantic Ocean to ...
,
North Carolina
North Carolina () is a state in the Southeastern region of the United States. The state is the 28th largest and 9th-most populous of the United States. It is bordered by Virginia to the north, the Atlantic Ocean to the east, Georgia and So ...
, and
Virginia
Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
continue to use contributory negligence.
Neither comparative negligence nor contributory negligence should be confused with
joint and several liability
Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be:
* jointly liable, or
* severally liable, or
* jointly and severally liable.
Joint liability
If parties have joint liabilit ...
, which generally holds each of two or more culpable
defendants
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdi ...
responsible for all the damages sustained by a plaintiff. For practical reasons, a plaintiff who faces the defense of comparative negligence may wish to join all potentially culpable defendants in his action since the plaintiff's negligence will be balanced against the combined negligence of all defendants in apportioning damages even if the plaintiff may not be able actually to get compensation from some of them: for example, if an insolvent individual and a major corporation were both negligent in causing plaintiff's harm.
Special circumstances
Sometimes a plaintiff and a defendant are both found to be negligent, but the court allocates full responsibility to the defendant in the interests of policy or justice. For example, in ''Bexiga v. Havir Manufacturing Corp.,'' 290 A.2d 281 (N.J. 1972), a minor operating a power punch press for his employer had his hand crushed by the ram of the machine. Although the plaintiff was negligent by placing his hand under the ram, the defendant (the manufacturer of the machine) had failed to provide additional safety equipment and was found to also be negligent. The court held that because the type of negligence was foreseeable and the very "type of eventuality the safety devices were designed to guard against," the defendant was liable for the plaintiff's damages.
Another example can be found in ''Christensen v. Royal Sch. Dist.,''124 P.3d 283 (Wash. 2005). In that case a 13-year-old girl engaged in sexual activity with her teacher.
The court held that the girl had no duty to protect herself from sexual abuse because it was in society's interest. Therefore, as a matter of law, anybody under the age of sixteen could not have contributory negligence found against them in this type of relationship.
In ''Derheim v. N. Fiorito, Inc.'', the
Supreme Court of Washington held that the defendant cannot use a seat belt defense to blame the plaintiff who had exhibited comparative negligence by not wearing a seat belt.
Serious-Misconduct Bar
Some states, such as
West Virginia
West Virginia is a state in the Appalachian, Mid-Atlantic and Southeastern regions of the United States.The Census Bureau and the Association of American Geographers classify West Virginia as part of the Southern United States while the Bur ...
have comparative negligence statutes which bar recovery for injuries that occurred while the individual was committing a felony or violent misdemeanor.
See also
*
Uniform Comparative Fault Act The Uniform Comparative Fault Act (UCFA), and its periodic revisions, is one of the Uniform Acts drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) with the intention of harmonizing state laws in force in the states ...
*''
Li v. Yellow Cab Co. of California''
*''
Hoffman v. Jones''
*
Comparative responsibility
Comparative responsibility (known as comparative fault in some jurisdictions) is a doctrine of tort law that compares the fault of each party in a lawsuit for a single injury. Comparative responsibility may apply to intentional torts as well as neg ...
References
{{reflist
Bibliography
* Dobbs, Dan B., Hayden, Paul T., and Bublick, Ellen M. ''Torts and Compensation''. Eighth edition. West Academic Publishing, 2017.
Tort law
Law of negligence
Legal doctrines and principles
American legal terminology
Comparative law