New York City Personal Injury Law Blog
Personal Injury Cases – Contributory and Comparative Negligence
What is negligence?
Negligence causes personal injury. There must be negligence in order for the defendant to pay for the injuries. And when such negligence is established, it legally binds the person at fault or negligent, to pay compensation to the victim, for all injuries and losses arising from that accident. A personal injury lawsuit can fetch a huge award as compensation benefiting the victim which is you or someone you know.
Establishing negligence is of paramount importance in a personal injury lawsuit.
The following elements of negligence need to be established:
- The defendant owes a duty toward the plaintiff
- The defendant breaches the aforesaid duty and fails to act in a reasonable way a person would act in a similar circumstance or situation.
- The breach actually causes the injuries to the plaintiff
- The plaintiff had actually suffered measureable injuries for which he or she can claim compensation
Jurisprudence firmly believes that the individual claiming compensation may share some amount of responsibility and liability for causing injuries to the self and/or contributing to the accident. Every state in the US follows one of the two rules in such situations.
In case of contributory negligence, if an individual contributes to his or her own injury, then no one else can be held responsible. In an accident if the plaintiff’s negligence is established, the defendant need not pay any compensation at all. This is known as pure contributory negligence system. A handful of states follow this contributory negligence system. They are: Alabama, Washington DC, Maryland, and Virginia.
In case of comparative negligence, each individual’s negligence is assessed for determining the quantum or amount of damages. The courts have found the contributory negligence system to be harsh and unpleasant as the system did not provide any scope for the recovery of damages. Hence many US states adopt this comparative negligence system.
Comparative negligence has two approaches:
Pure Comparative Negligence
Plaintiff’s contribution of negligence is assessed and damages determined to reflect the percentage of contribution to the accident. In a personal injury lawsuit, if the plaintiff was awarded $100,000 and the jury determines that the plaintiff had contributed 15% to the accident, then the plaintiff would be awarded only $85,000.00
States that follow this rule are: Arizona, California, Louisiana, Mississippi, New York, Alaska, Florida, Kentucky, Missouri, New Mexico, Rhode Island, and Washington.
Modified Comparative Negligence
The plaintiff is not compensated if found to be equally or more responsible for the accident. The plaintiff’s negligence in the accident must be less than 50% in order to recover damages.
The states that follow this system are: Georgia, Idaho, Kansas North Dakota Tennessee Utah, West Virginia, Arkansas, Colorado, Maine, and Nebraska.
Twenty one states follow the 51% bar rule.
South Dakota follows the slight/gross negligence system under which recovery is possible only if plaintiff‘s negligence is “slight” and the defendant’s negligence is “gross.”