What is Comparative Negligence?

While it is easy to determine the cause of some accidents, others are not so clear. Say, for example, you are driving, and another car hits your truck in the rear after you have come to a complete stop at a red light. Seems clear who is at fault, right? But what if you were merging into oncoming traffic? And the other driver was texting. And you did not signal a right turn …

Both parties were in the wrong, but who is most at fault and whose insurance company must pay? And how much?

That is where comparative negligence comes in. It is the legal mechanism that measures the contributions of both parties to an accident. “Negligence” is when a party’s unreasonable conduct cause damage or injury to another party. Comparative negligence is handy when more than one person or entity may be responsible for an accident, like in the case of a multi-car collision. It is important to know because most states apply it, and it is the deciding factor in casualty insurance settlements and jury trials for compensation.

Which States Apply Comparative Negligence?

Most states apply comparative negligence, some with modifiers in place. It is easier to point out those that do not: At time of publication, Alabama, Maryland, North Carolina, Virginia, and Washington, D.C. do not recognize comparative negligence. These states apply contributory negligence instead (more on that later).

If your state is not in this list of five, then you are working with a comparative negligence state. And comparative negligence states are further split into how they apply comparative negligence: There could be a modifying rule in place, depending on where you live.

Pure Comparative Negligence

Imagine a courtroom setting where comparative negligence is taken to the extreme … there is an argument that while one party was 99% at fault, the other party was 1% at fault. Could this be a real outcome?

The answer is yes. In states that apply pure comparative negligence, the full spectrum of fault is at play. Parties can be anywhere from 1% to 99% at fault for an accident.

States that apply pure comparative negligence are:

• Alaska
• Arizona
• California
• Florida
• Kentucky
• Louisiana
• Mississippi
• Missouri
• New Mexico
• New York
• Rhode Island
• South Dakota* (modified by slight vs. gross)
• Washington

Pure comparative negligence example: Driver 1 and Driver 2 get into an accident in New York. Driver 1 has $1000 worth of damages and is found to be 47% at fault for the accident. Driver 2 has $700 in damages and is found to be 53% at fault for the accident.

Both drivers get to collect compensation for their damages, but only the percentage of the accident that they were not at fault for. Driver 1 would collect 53%, or $530 for their damages. Driver 2 would recover $329, just 47% of their damages. Each pays the other’s share of their damages.

Modified Comparative Negligence

Remember, the argument in comparative negligence is not who caused the accident. In these cases, it is established that both parties are at fault. What comparative negligence aims to find out is which party contributed the most to the accident. With this in mind, most states have appended rules to comparative negligence to help sort out fault

Modifying rules often determine a cut-off percentage for fault, which could restrict how much money you can recover from the driver/insurance. Here is what you need to know about comparative negligence modifiers in your state.

What is the 50% or 51% Bar Rule?

Some states installed a modifying rule to comparative negligence that puts a limit on the percentage of fault that is eligible for recovering any compensation at all. The most common are the 50% and 51% bar rules.

For the 50% Bar Rule, a party that is found to be 50% or more at fault for an accident cannot recover any percentage of compensation. On the other hand, if a party is found to be at 49% fault or less, they can recover compensation for damages.

12 states currently adhere to the 50% Bar Rule:

• Arkansas
• Colorado
• Georgia
• Idaho
• Kansas
• Maine
• Nebraska
• North Dakota
• Tennessee
• Utah

50% Bar Rule Example: Two drivers get into an accident in Tennessee. Driver 1 has $300 worth of damage and is found to be 60% at fault for the accident. Driver 2 has $450 worth of damage and is found to be 40% at fault for the accident.

In this case, Driver 1 has exceeded the 50% bar rule and cannot collect any money for damages. Driver 2 was only 40% at fault for damages, so they can collect 60% of their damages from Driver 1, $270.

The 51% Bar Rule works in the same way, with a bit more leniency for one party. If it is determined that you contributed up to 50% of the accident, you can still recover from the insurance company. That means both parties can be in a “tie,” both equally at fault for the accident, and both able to recover for damages.

23 states currently adhere to the 51% Bar Rule:

• Connecticut
• Delaware
• Hawaii
• Illinois
• Indiana
• Iowa
• Massachusetts
• Michigan
• Minnesota
• Montana
• Nevada
• New Hampshire
• New Jersey
• Ohio
• Oklahoma
• Oregon
• Pennsylvania
• South Carolina
• Texas
• Vermont
• Wisconsin
• Wyoming
• West Virginia

51% Bar Rule Example: Two drivers get into an accident in Ohio. Driver 1 has $500 worth of damage and is found to be 50% at fault for the accident. Driver 2 has $400 worth of damage and is found to be 50% at fault for the accident.

In this case, Driver 1 and Driver 2 can both collect 50% of their damages because they are in Ohio, a 51% bar rule state. This allows a kind of “tie” where both drivers can be equally at fault for the accident.

South Dakota Comparative Negligence Law

Just one state follows a comparative negligence modifier called the slight vs. gross rule.

In South Dakota, you can be at “slight” fault, or “gross” fault. And that is as accurate as it sounds: Like saying a “dash” of pepper instead of “2 teaspoons.”

The court will decide which party was at slight or gross fault, thus impacting the amount of compensation for damages that can be awarded.

Slight vs. Gross Example: Two drivers get into an accident in South Dakota. Driver 1 was pulling away from a stop sign into an intersection, and Driver 2 was making a right turn without stopping. The court finds Driver 1 at “slight” fault and determines to what degree they can recover compensation from Driver 2. Driver 2 would be ruled at “gross” fault and is barred from compensation.

The Difference Between Comparative and Contributory Negligence

Comparative negligence considers both parties and to what degree each is responsible for the damages. Meanwhile, contributory negligence states will have none of that. In contributory negligence states, if any of the parties are even at the least bit at fault for an accident, they are not eligible to recover any money for damages.

The absolute nature of this rule may explain why only five states apply contributory negligence. In case you missed it, those states are:

• Alabama
• Maryland
• North Carolina
• Virginia
• Washington, D.C

Contributory Negligence Example: Two drivers get into an accident in Virginia. One driver was under the influence, and the other was speeding. Both drivers contributed to the accident with reckless behavior, so no one recovers compensation for damages.

Assumption of Risk

If you are injured while riding a roller coaster, or while working on the known “bad” machine at work, will that decrease your chances of a favorable comparative negligence outcome? There are a couple of types of “assumption of risk” that can impact your case.

Primary assumption of risk is when a person engages in an activity that has inherent accepted risks, like dirt biking, rock climbing, or skiing. If a person is injured while skating in a roller derby, for example, they would have a tough case against collecting damages from the roller rink, where they were knowingly engaging in a risky activity.

Secondary assumption of risk occurs when you know about the risk caused by another party’s negligence but proceed anyway.

In addition to these, there is express and implied assumption of risk. Express assumption of risk is when you sign a waiver, like at a gym or before a 5K race. Implied assumption is when the situation is understood to be risky, but you proceeded anyway.

How is Negligence Proven?

In a pure comparative negligence state, you could be at fault for 2% or 52% of an accident, depending on how much negligence you contributed to said accident.

But how is negligence determined?

To seek compensation for negligence, the four established elements of negligence need to be proven. These include duty of care, breach of duty of care, causation, and that someone suffered damages due to all the above.

These requirements hinge on the circumstances of the accident and nuances of the law—which is why skilled attorneys are required to prove that the bulk of comparative negligence falls on the other party.

Case Study: Example of Comparative Negligence

Our firm obtained a verdict of $3,620,000 for a client, a delivery truck helper, who was making a beverage delivery at an upper Manhattan Fairway supermarket when he was struck by a forklift operated by a supermarket employee. Our client suffered leg injuries, including a displaced comminuted fracture of the left tibia-fibula. His back required a two-level lumbar fusion at the L3-4 and L4-5 levels. His income was impacted, he incurred medical expenses for treatment, and his mental health suffered because of the accident.

Fairway attempted to convince the court that our client was 100% at fault for the accident. Fairway aggressively presented witness testimony to a Bronx jury to prove that our client was at fault. But our attorneys, Scott Occhiogrosso and Frederick C. Aranki, presented evidence of liability during a Bronx jury trial that proved our client contributed only 10% of fault to the accident. This example is a clear indication that comparative negligence cases require determined attorneys that are ready to investigate every facet of the seconds in which an accident can occur.

The jury agreed with our lawyers, and Fairway was left with 90% liability. Our client was awarded a total verdict of $3,258,000.

Legal Help for Those Injured by Another Party’s Negligence

New York, a pure comparative negligence state, determines what percentage each party was at fault for an accident. The attorneys at Block, O’Toole & Murphy are experienced in fighting for victims harmed in negligence cases. to secure a low percentage of negligence for accident victims. Your case should be relentlessly defended. With over $1.5 billion recovered for our clients in New York and New Jersey, we are ready to fight for compensation for your injuries.

Select cases of negligence include:

• $110,174,972.38 verdict for a cyclist who was struck by a falling railroad tie and became paralyzed
• $8,800,000 settlement for a grandmother who suffered a brain injury after being hit by a van
• $2,700,000 settlement for 54-year-old woman who tripped on uneven pavement and injured her spine and knee

Call 212-736-5300 to schedule a free consultation or fill out our online contact form. Our firm serves New York and New Jersey.