Personal Injury Law
What happens if both parties (plaintiff and defendant) are negligent?
In the vast majority of states a plaintiff can recover damages for a negligence action against a defendant as long as a jury determines that the plaintiff was less negligent than the defendant. Most states have adopted comparative negligence either through a statute passed by the legislature or through judicial decisions (called the common law).
Comparative negligence means that a jury compares the negligence of the defendant to the negligence of the plaintiff. It also means that the plaintiff receives a reduced amount of damages calculated by the percentage of the plaintiff’s own negligence. For example, let’s say that Driver A and Driver B are involved in a car accident that occurred after B wrongfully pulled out in front of Driver A. However, Driver A was speeding and the jury determines that A’s speeding contributed to the accident. The jury determines that A suffered $20,000 in damages but that A was 20% negligent.
This means that A would receive $20,000 minus 20 percent of $20,000, which is $4,000, leaving a total recovery of $16,000.
Most states have a form of comparative fault. A few states, such as Alabama, still retain the older model of contributory negligence. Under this system, a plaintiff cannot prevail if it is shown that he or she contributed to the injury or harm with his or her own negligence. Contributory negligence has been criticized as an all-or-nothing system that denied many deserving plaintiffs of compensation.