One of the most rewarding parts of being an attorney is answering questions that clients ask. Today we tackle the issue of comparative negligence. As an attorney, I am always asked: “What is comparative negligence?” We will attempt to sort this and more out below.
Virtually all states reject the rule that contributory negligence is an absolute bar to recovery and base liability on the comparative fault of Plaintiff and the Defendant. Texas along with 32 other states use a modified comparative fault rule.
- “Pure” comparative negligence – Under a pure comparative negligence scheme, the plaintiff may recover the percentage of damages for which the defendant is liable even where the plaintiff’s negligence exceeds the defendants.
- “Partial” comparative negligence – Under a partial comparative negligence scheme, the plaintiff may recover the percentage of damages for which the defendant is liable only if plaintiff’s own negligence is less than a certain threshold level. If there is more than one defendant, most states require that the plaintiff’s negligence be less than the negligence of any of the defendants. A few states permit recovery if the plaintiff’s negligence is less than that of the aggregate.
- Impact of comparative negligence doctrine on other rules:
- Last clear chance – Under comparative negligence, the last clear chance doctrine is generally abolished.
- Wanton or reckless conduct by Defendant – Such conduct apparently will not affect the comparative negligence doctrine; i.e., the plaintiff’s recovery can still be reduced. But the plaintiff’s negligence is not a factor if the defendant acted intentionally.
- Avoidable consequences – Total relevant fault is apportioned; thus failure to mitigate damages is no longer charged solely to the plaintiff.
- Rescuers – Most courts do not allow a rescuer’s negligence to result in a reduction in the rescuer’s award.
- Res ipsa loquitur – Most states no longer require plaintiffs to show freedom from contributory negligence as part of a res ipsa case.
- Punitive damages – Plaintiff may not recover punitive damages where the jury has attributed more fault to the plaintiff than to the defendant.
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