A layman's explanation of comparative fault and or contributory negligence and how it affects your recovery.
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Many of us will at some point in our lives be involved in a personal injury lawsuit. It may be because we’ve been involved in some way in a car accident. Or, we could be on a jury listening to someone else’s story. In any event, a bit of knowledge about the way the system works is never a bad thing to have. So, a little bit about comparative and contributory negligence and the various ways it may be legally defined. This is a comment on the broad outlines of negligence. Specific details may vary widely from state to state and it is always a good idea to consult a skilled personal injury attorney familiar with your jurisdiction.
Traditionally, under the common law, if the plaintiff were responsible for any of his or her damages there could be no recovery. This legal concept is known as contributory negligence (CN). If for instance, a pedestrian failed to look both ways before crossing the street and were struck by a clearly negligent driver, the pedestrian was traditionally barred from recovering any damages from the driver. This system has grown increasingly unpopular, being seen as fundamentally unfair, with only four states and the District of Columbia still using it in a pure form.
Thirteen states use what is called the “pure comparative fault rule” (PCF). This means roughly that a plaintiff can recover, even if 99% at fault, but that any recovery will be reduced by damages he plaintiff was responsible for. If a jury finds that Dan is 40% at fault, and Melinda is 60% at fault, Dan could still recover, but his $10,000 damage award will be reduced by 40%, for a net recovery of $6000.
The remaining states fall use the “modified comparative fault” (MCF) system, which strikes a balance between the pure comparative fault and contributory negligence standards. In these states any judgment will be reduced by the plaintiff’s degree of negligence, just as in a PCF system. However, if the plaintiff’s negligence exceeds a certain threshold, all recovery is barred. That threshold is normally either fifty or fifty-one percent, depending on the state.
Florida uses a pure comparative fault rule. Because the common law generally controls unless superseded by statute, the Florida legislature has enacted a statute expressly allowing recovery by a plaintiff even if he or she bears some measure of responsibility for an injury. A problem that can spring up in states like this is the jury attempting to take matters into their own hands.
In theory the jury should award the same amount of damages regardless the percentages of assigned responsibility. Then someone, often the judge, will reduce any award. Often however, in cases where the plaintiff bear a large amount of responsibility for the injuries, juries will be biased against the plaintiff, essentially preemptively reducing any award before the judge has a chance to. This is a twisting of Florida law, and it is something that a lawyer should be watchful of.