What is Comparative Negligence?

Comparative negligence, also known as comparative fault, is a legal doctrine that addresses the situation where one party is suing another for personal injury, such as an automobile accident, slip and fall, or defective product, yet both parties are found to have contributed to the accident or the injury. Originally, the doctrine of contributory negligence held that if the plaintiff was found to have contributed to the accident in any way, then the plaintiff would be prohibited from any recovery at all. Almost all American jurisdictions have gotten away from this harsh rule, however, by adopting some form of comparative negligence instead.

Today, there are three main types of comparative negligence. “Pure” comparative negligence allows a plaintiff to recover compensation regardless of how much fault is attributed to the plaintiff. For instance, a plaintiff who suffered $100,000 in damages and was found to be 90% at fault could still recover from the negligent party, although he or she would only collect 10%, or $10,000, from the defendant. Other states have adopted a “modified” form of comparative negligence. In some states, a plaintiff can only recover if he or she is less at fault than the other party. In other words, a plaintiff who was 49% at fault could recover 51% of his or her damages from the other party.

In New Jersey, the law (NJSA 2A:15-5.2) allows a plaintiff to recover so long as he or she is not more at fault than the other party. In New Jersey, a party who was 50% at fault could recover 50% of his or her damages from the other party. If the party is 51% at fault, however, he or she cannot recover anything at all.

How is Comparative Fault determined?

If you file an auto insurance claim with the other driver’s insurance company, they may make an initial determination of comparative negligence and adjust their settlement offer accordingly. Ultimately, if a satisfactory settlement is not forthcoming, it may be necessary to litigate the matter in court. In that case, it is a jury who will decide whether both parties are at fault and how much blame should be assigned to each party.

In an auto accident, examples of comparative negligence could include the following:

  • Failing to observe and avoid the other vehicle
  • Failing to honk the horn, apply the brakes or swerve
  • Texting or talking on a cell phone and not paying attention
  • Not wearing a seat belt

Comparative negligence is not limited to car accidents and can apply in any personal injury or wrongful death matter. For instance, in a slip and fall it may be argued that the injured person did not pay enough attention to warning signs and markings or utilize available handrails. An injured worker may be blamed for not utilizing appropriate safety equipment which was provided or for not following proper safety procedures. A person injured by a defective product may be considered at fault for ignoring safety warnings, disabling safety features, or using the product for some purpose that was not intended or reasonably foreseen by the product manufacturer.

Experienced New Jersey Personal Injury Attorneys Can Help

Insurance defense companies know all about comparative negligence, and they will investigate the accident very carefully, interpreting each piece of evidence and every witness statement with an eye toward shifting as much of the blame as they can to the plaintiff. Given the high consequences at stake, it is very important that you retain an experienced personal injury attorney who can persuasively argue the facts of the case and keep you from being unfairly painted with blame that does not belong to you, decreasing the amount of compensation that is due to you or shutting you out from any recovery at all. In Wayne, New Jersey, contact De Frank, McCluskey & Kopp for assistance. Call 1-844-4MBHURT for a free, confidential and no-obligation consultation.

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