Determining Liability When Both Parties Have Some Responsibility

There are many personal injury claims where the accident was caused entirely by the wrongful conduct of one party—a motorist runs a stop sign or a building owner neglects to fix a broken stairway. Often, though, the carelessness of the injured person contributes in some way to the accident and injury.

For centuries, the law of personal injury prevented a person from recovering anything if the injured party contributed in any way or to any degree in causing the accident. That legal theory was known as “contributory negligence.” It became a common strategy among defense attorneys—if it could be shown that the plaintiff (injured person) was negligent or careless in any way, the case would typically be dismissed.

Over time, the principle of contributory negligence came to be perceived as harsh and unfair. A grossly negligent defendant could walk away with impunity if it could be shown that the plaintiff was even the slightest bit careless. Around the turn of the 20th century, states started replacing the concept of contributory negligence with “comparative negligence.”

Under the doctrine of comparative negligence, the court takes a look at the total amount of losses suffered and allocates financial responsibility according. Two forms of comparative negligence have evolved:

• Pure comparative negligence — Under this approach, a plaintiff will always receive some damage award, unless the jury finds that he or she is entirely responsible for the injury. Accordingly, an injured party who suffers $100,000 in losses, but is 75% responsible will still receive $25,000 in damages.
• Modified comparative negligence — Under this version of comparative negligence, there’s a threshold of liability, above which the plaintiff may not recover anything. Typically, it’s 50%. Accordingly, if the plaintiff is more responsible than the defendant, there’s no financial recovery.