Comparative Fault/ Negligence, Contributory Negligence |
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. Comparative fault, also known as comparative negligence, is often used as a defense where one party proves that the other party was partially at fault for the damages incurred. In other words, the plaintiff's recoveries are lowered by the percentage of negligence that his own actions or faults contributed to the injuries. Comparative fault or comparative negligence is in direct contrast with the legal doctrine of contributory negligence, which denies any recovery for the plaintiff that is found to have contributed to his damages, even if the percentage of the plaintiff's fault is minimal. Only five states in the United States recognize the pure contributory negligence doctrine, while most follow a comparative fault or modified comparative fault/ negligence legal scheme. The states that follow the pure contributory negligence legal scheme, and the underlying authority, are as follows: Alabama, Alabama Power Co. v. Schotz, 215 So.2d 447 (Ala. 1968); Virginia, Baskett v. Banks, 45 S.E.2d 173 (Va. 1947); District of Columbia, Wingfield v. People's Drug Store, 379 A.2d 685 (D.C. 1994); Maryland, Board of County Comm'r of Garrett County v Bell Atlantic, 695 A.2d 171 (Md. 1997); North Carolina, N.C.G.S.A § 99B-4(3). Thirteen states follow a pure comparative fault legal system. Those states, and the underlying authority, are as follows: Washington, R.C.W.A. §§ 4.22.005-015, South Dakota, S.D.C.L. § 20-9-2; Rhode Island, R.I.G.L. § 9-20-4; New York, N.Y. C.P.L.R. § 1411; New Mexico, Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981); Missouri, Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983); Mississippi, M.C.A. § 11-7-15; Louisiana, L.S.A.- C.C. Art. 2323; Kentucky, K.R.S. § 411.182; Florida, F.S.A. § 768.81(2); California, Liv v. Yellow Cab, 119 Cal. Rptr. 858 (1975); Arizona, A.R.S. § 12-2505; Alaska, Alaska Stat. §§ 09.17.060 & 09.17.080. The remaining thirty two states all follow a modified comparative fault standard. That is to say, they are not a pure comparative fault jurisdiction where the plaintiff's recoveries are reduced by the percentage of his fault. Twelve of these states that use a modified comparative fault rely on the fifty percent bar rule (50% bar rule). Under this standard, the plaintiff may only recover for his damages if his degree of fault was less than 50%, and any recoveries for damages must then be reduced by his percentage of fault. Those twelve states that use this modified comparative fault standard, with the 50 percent bar rule, are as follows: West Virginia, Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W. Va. 1979); Utah, U.C.A. §§ 78-27-37 & 78-27-38; Tennessee, McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992); Oklahoma, Okla. Stat. Ann. Tit. 23, § 13; North Dakota, N.D.C.C. § 32-03.2-02; Nebraska, Neb. Rev. Stat. § 25-21, 185.11; Maine, 14 M.R.S.A. § 156; Kansas, K.S.A. § 60-258a(a); Idaho, Idaho Code § 6-801; Georgia, O.C.G.A. § 51-11-7; Colorado, C.R.S. § 13-21-111; Arkansas, A.C.A. § 16-64-122. The other twenty one states that follow the modified comparative fault standard rely upon the fifty one percent bar rule. under the 51 percent bar rule, the plaintiff may not recover for his damages if he is 51% at fault or greater, and the amount of his award must be reduced by his percentage of fault. Those states, and the authority for them, are as follows: Wyoming, Wyo. Stat. § 1-1-109(b); Wisconsin, Wis. Stat. § 895.045(1); Vermont, Vt. Stat. Ann. Tit. 12, § 1036; Texas, Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001-33.017; South Carolina, Nelson v. Concrete Supply, 399 S.E.2d 783 (S.C. 1991); Pennsylvania, 42 P.S. § 7102; Oregon, O.R.S. § 18.470; Ohio, Ohio Rev. Code Ann. § 2315.19(B)(4); New Jersey, N.J.S.A. § 2A:15-5.1; New Hampshire, N.H. Rev. Stat. Ann. § 507:7(d); Nevada, N.R.S. § 41-141; Montana, Mont. Stat. § 27-1-702; Minnesota, M.S.A. § 604.01(1); Michigan, M.C.L.A. § 600.2959; Massachusetts, M.G.L.A. 231 § 85; Iowa, I.C.A. § 668.3(1)(b); Indiana, I.C. § 34-51-2-6; Illinois, 735 I.L.C.S. § 5/2-1116; Hawaii, Haw. Rev. Stat. § 663-31; Delaware, 1 Del. C. § 8132; Connecticut, C.G.S.A. § 52-572(h). Let's analyze a common case to illustrate these legal theories in practice: John runs a red light while speeding. John crashes into Stacey whom had proceeded into the intersection when she had a green traffic signal. Stacey had been drinking heavily all day before the accident. John's injuries includes medical, lost wages, and the cost of repairs to his car for a total of $10,000. Stacey's injuries includes medical expenses and the cost to fix her truck, for a total of $20,000. Stacey files suit against John for negligence. If this case took place in Maryland, we would apply pure contributory negligence (by the authority of Board of County Comm'r of Garrett County v Bell Atlantic, 695 A.2d 171 (Md. 1997) ). Under a pure contributory negligence analysis, Stacey may not recover for her damages if she is even partially at fault. In this case, Stacey's DUI will likely bar any recoveries against John because they were likely at least 1% of the reason for the accident. If this case took place in Arizona, we would apply the pure comparative fault rule. The authority for this is A.R.S. § 12-2505. Under pure comparative fault, each party must be assigned a percentage of fault, and the damages apportioned accordingly. Even if a party is 95% at fault, they may recover for their injuries, but the recovery must be reduced by their percentage of fault. Let's say that John is 95% at fault in this case. In Arizona, applying pure comparative fault, he may recover for his damages, less 95% (his portion of fault). So John may be entitled to $500 ($10,000 x 5%). Stacey will also be allowed to recover for her damages, and they must be adjusted down by 5% since she is 5% at fault. Stacey is entitled to $19,000 ($20,000 X 95%). It looks like John will owe Stacey $18,500 ($19,000 - $500) in this pure comparative fault jurisdiction. If this case took place in Idaho, we would follow Idaho Code § 6-801 which defines Idaho as a modified comparative fault jurisdiction that follows the 50 percent bar rule. Under the 50 % bar rule, the plaintiff may recover for her damages if she is less than 50% at fault, and her damages must be reduced by her percentage of fault. In this case, let's say that Stacey is 48% at fault. Since that is less than 50%, Stacey is entitled to recover for her injuries that were primarily due to John's negligence. Her award of $20,000 in damages must be reduced by her share of fault (48%). Stacey is therefore entitled to recover $10,400 ($20,000 x 52%) from John. If this case took place in Hawaii, Haw. Rev. Stat. § 663-31 would dictate that we follow the modified comparative fault 51 percent bar rule. If Stacey is 50% or less at fault, she may recover for her injuries caused by John's negligence. Any award would then be reduced by Stacey's share of fault. Let's say that Stacey is 52% at fault. Since her portion of negligence is greater than 50%, Stacey may not recover for any of her injuries.
Filed under Tort Law in Legal News on May 13, 2008.
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