What Is the Comparative Negligence Rule in Personal Injury?
Comparative negligence is a system that allows the defendant to reduce the amount the plaintiff can claim for damages based on the proportionate amount of wrong that the plaintiff contributed. For example, if the court determines that an accident was caused 75 percent by the defendant and 25 percent by the plaintiff, the plaintiff will only be able to recover a maximum of 75 percent of the damages that occurred.
The other school of compensation exists in the form of pure contributory negligence. In contributory negligence, a plaintiff may be denied compensation if he has deemed to have contributed even 1 percent to the fault. In other words, if a jury determines that the plaintiff acted in some way that added any amount of fault, he may be unable to recover for his damages. Currently, only five states use the contributory negligence method; the other 45 states use comparative negligence.
How is comparative negligence calculated?
Courts will hear a case and make a determination on how the fault is divided. For example, if person A was involved in a car accident with person B wherein person A was speeding, the latter will likely be determined to be at fault, at least partially for the accident. Here, however, imagine that person B was texting while driving or was partially intoxicated. In this situation, person B will be deemed partially at fault, as well.
It is up to the jury, then, to determine the level of fault held by each person, which will ultimately depend on the circumstances of the case. If person A was held to be 40 percent at fault for the accident, then he or she will only be able to recover 60 percent of the total damages from the defendant. Because this determination depends on so many different factors, it is imperative to contact an attorney for assistance.
In Vermont, a plaintiff who is more than 50% at fault cannot recover at all.
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Comparative negligence can be a tricky topic; it is a confusing area even for the most accomplished legal minds. If you have any further questions or inquiries regarding malpractice, please contact Cleary Shahi & Aicher, P.C. in Vermont online or call us at (802) 775-8800. We are well versed and experienced in the legal services and can answer your questions accurately and in an efficient manner.