In the bulk of personal injury claims, the injured person was entirely a victim of the carelessness or negligence of others. However, in many such situations, the injured person also engaged in negligent behavior, either causing or exacerbating their injuries. If you were partially responsible for causing the accident that led to your injuries, how does that affect your right to seek and recover compensation from other parties? Does that prohibit you from seek compensation at all?
For centuries, that was the law—even the slightest degree of culpability on the part of the injured party (plaintiff) would provide a legal basis for a petition to dismiss the claim. Unfortunately, defense attorneys began to (mostly successfully) rely on evidence of minimal or inconsequential negligence by the plaintiff to have the lawsuit dismissed.
Perceiving this strategy to lead to patently unfair outcomes, legislatures across the country, including New Jersey, started replacing the law of contributory negligence with a comparative negligence approach. Under a comparative negligence scheme, the court determines the full cost of the injured party’s losses, and then assesses a degree of liability on the plaintiff. The plaintiff’s damage award is then reduced by the established level of fault. If the total damages are $200,000 and you are consider 20% responsible, your total award will be reduced to 80%.
As the law of comparative negligence has evolved, two different forms of comparative negligence have developed—pure comparative negligence and modified comparative negligence. With pure comparative negligence, an injured party will aways receive something—the calculated damages reduced by the level of culpability of the plaintiff. In a modified comparative negligence scheme (as in New Jersey), a plaintiff will be denied any recovery if his/her responsibility goes over a specified threshold (usually 50%).
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