Comparative negligence is the primary theory of tortfeasor recovery for the vast majority of injured persons. Negligence is a broad “umbrella” term that denotes a cause of action for the recovery of damages due to injuries sustained by the negligent (or careless) actions of another person. Negligence itself has broken down into two primary theories, contributory and comparative negligence.
Negligence is the primary legal theory under which most plaintiffs can pursue compensation. Negligence includes every circumstance from car accidents to slips and falls in businesses. Coincidentally, negligence is also one of the most developed areas of laws, with numerous subsets and sub-theories for specific situations.
Contributory vs. Comparative Negligence
Contributory negligence, the traditional legal theory of negligence, permitted plaintiffs to recover compensation from defendants only if the plaintiff was not found to have contributed to the cause of their injury. For example, if a plaintiff were speeding at the time of an accident, contributory negligence would prevent the driver from recovering compensation because he was speeding at the time of the accident.
Conversely, comparative negligence (which is now the ascendant theory of negligence) permits compensation to the plaintiff, but the recovery is reduced based on the plaintiff’s relative percentage of fault. For instance, incorporating the same example, the jury would be asked to decide (a) did the plaintiff contribute to the accident and (b), if yes, by how much as a percentage of responsibility. If the jury returns with an (a) yes and (b) 20 percent, then the plaintiff’s recovery are reduced by 20 percent.
Some states, including Nevada, use a “mixed comparative” negligence model. In a mixed model, Nevada prohibits the recovery of compensation if the plaintiff is found to be more than 50 percent at fault for the accident. The goal of this limitation is to prevent guilty parties from pursuing compensation against other parties who were not primarily at fault.
Comparative Negligence: Benefits to Society
Comparative negligence was a boon to injured persons and plaintiffs. Comparative negligence revolutionized tort practice and allowed many plaintiffs, with legitimate claims, to pursue compensation. Contributory negligence was once a cudgel that was used to defeat numerous legitimate claims.
However, comparative negligence allows for the fairer application of the law and judicial system. Plaintiffs are permitted to pursue their claims, gather evidence, and present arguments – whereas before plaintiffs were blocked in the preliminary stages of litigation.
