Comparative Negligence Rules

A modified comparative negligence rule which places legal parameters on what a person is able to recover for damages and personal injury is followed by most states. Under this rule, the percentage of negligence found against a driver (tort-feasor, plaintiff) determines what damages if any he may recover from other drivers involved in the accident. New Jersey and Texas are among the majority of states that follow the comparative negligence rule.

In some states, the Plaintiff may recover if his negligence is not more than the driver he is pursuing a claim against. If two drivers involved in accident are each found to have contributed 50% to the accident, then neither will be able to pursue a claim against the other. However, if Jack was 40% at fault and Jill was 60% at fault, then Jack could pursue a claim for 60% of the total value of his damages and personal injury from Jill.

In other states, a driver can only recover if his negligence is less than the other’s, but his total compensable damages will be reduced by the percentage of fault found against him. For example, if Bill is driving a car and has an accident with a car driven by Mary, and both drivers are found to be 50% at fault, neither may recover their damages from the other’s insurance company. However, if Bill is found to be only 40% at fault and Mary is 60% at fault, then Bill may recover 60% of the value of his damages and personal injury from Mary’s insurance carrier. Mary will not be able to recover anything from Bill.

A few states follow a pure comparative negligence rule, which states that any person who is less than 100% at fault for an accident may recover from any other involved driver who has been found at fault for any percent, regardless of how small. Under this rule, if Mark and Larry were both 50% at fault, then they could both recover 50% of their damages from the other’s insurance company. If Mark were 95% at fault and Larry were only 5% at fault, then Mark could recover 5% of the value of his damages and personal injury claims from Larry’s insurance carrier and Larry could in turn recover 95% of his damages from Mark’s carrier.

As you may have realized, the actual percentage of fault can be difficult to assess; the actions of a driver may lead one jury to place him 25% at fault for an accident, and another jury to place him 30% at fault. Unless the case involves a situation such as one driver sitting perfectly still at a red light when struck from the rear by another, these liability percentages can be highly subjective. In states where the comparative negligence rule is followed, the first series of negotiations is usually over the percent negligence each side is willing to cede to the other.

This article is written for informational purposes only and is not intended to take the place of competent local legal counsel.

Related articles discussing other liability and negligence issues:

The Assumed Risk defense.

The Boulevard Rule explained.

Contributory Negligence explained.

The Intentional Act Exclusion explained.

Joint and Several Liability explained.

The Last Clear Chance Rule explained.

Mitigation of Damages explained.

Negligent Entrustment explained.

The Black Box in Your Vehicle

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