If a victim is partially responsible for their own injury, what happens? Many states have contributory and comparative negligence rules that explain how these cases are dealt with, but some of the terminology can be confusing.
In New Jersey, we have a “comparative negligence” rule. A traditional “contributory negligence” rule says that any level of contribution from the victim makes them unable to sue, while a “comparative negligence” rule allows blame to be assigned to each party. Then, the victim’s damages are reduced. But because we have a “modified” comparative negligence rule, you cannot sue in NJ if you are over 50% fault.
For help with an injury case, call the New Jersey personal injury lawyers at Agrapidis & Maroules, P.C. at (201) 777-1111.
Contributory Negligence vs. Comparative Negligence Rules
Comparative negligence is actually an evolution of the contributory negligence rule, which was an older version. Most states have further modified their comparative negligence rules.
Note with these rules that we usually use whole numbers, so there is no 49.999% fault or 50.5% fault or anything like that.
Contributory Negligence
When our Plainfield, NJ personal injury lawyers say “contributory negligence,” we mean that the victim did something to contribute to their own accident. For example, maybe they weren’t paying full attention in a product injury case, they were drunk in a slip and fall case, or they were speeding in a car accident case.
In a “contributory negligence” system, any level of contribution blocks the victim from suing. Even 1% fault can block your whole case.
(Pure) Comparative Negligence
With comparative negligence, contributing doesn’t block you from suing. Instead, the court assigns a percentage of fault (usually a whole number) to each person involved. Then, each defendant pays their share of the damages, and the victim loses their percentage of the damages.
In a “pure” comparative negligence system, there is no bar to recovery. E.g., the victim can be 99% at fault and still sue for the 1% of damages the defendant caused them.
Modified Comparative Negligence
Most states use a comparative negligence system, but it has a cutoff, resulting in a “modified” rule. This means you can recover partial damages as long as you were up to or under 50% fault, depending on the rule:
- When the maximum shared fault is 50%, we call this a “51% bar” because anything over 50% is barred (i.e., when using only whole numbers, anything 51% or higher).
- When you are blocked from suing at 50/50 fault, we call this a “50% bar.”
What Comparative Negligence Rule Does NJ Use?
In New Jersey, we have a modified comparative negligence law with a “51% bar.” This allows victims who contributed to their own injuries to still sue as long as they are not more at fault than the defendant.
Comparative Negligence (Not Contributory)
We have a comparative fault system, since contributory negligence does not block you from suing.
Modified Comparative Fault
Because we have a cutoff, this is a “modified comparative fault” rule, not a “pure comparative fault” rule.
“51% Bar” (i.e., 50% Max)
The specific phrasing in the statute says you can still sue as long as your “negligence was not greater than” that of the defendant(s). This is usually called a “51% bar” because it allows 50% negligence and bars 51%.
Recall that we usually only use whole numbers, so a “51% bar” really means “anything over 50% is barred.”
Example of How Comparative Negligence Works
Let’s take the example of a car crash. Let’s say there were three drivers involved: Drivers A, B, and C. Driver A – the victim – was traveling southbound when Driver B ran a stop sign and clipped Driver A. Driver C was coming up from behind too fast to stop, and caused further damage to both of them.
Assigning Fault
The jury can assign partial blame to each party involved. Let’s say they assign blame this way:
- Driver A – the victim – was found 10% at fault because he was speeding at the time
- Driver B – a defendant – was found 70% at fault because he ran a stop sign.
- Driver C – a defendant – was found 20% at fault because he was going too fast and following too closely to stop in time, but only contributed to the damage after the initial collision.
Determining Damages
The jury also determines total damages based on how much harm the victim suffered. Let’s say they find the victim faced $100,000 in damages (accounting for medical bills, lost wages, vehicle repairs, and pain and suffering).
Comparative Negligence Rules Applied
Our victim, Driver A, was 10% at fault compared to the defendants’ total of 90% fault, so our modified comparative negligence rule doesn’t stop him from suing. However, he loses 10% of the total damages, so only $90,000 remain.
Driver B pays $70,000, and Driver C pays $20,000.
From Driver B’s Perspective
If Driver B tried to sue Driver C for the same accident, the court might reject his claim because he was responsible for more than half of the fault.
From Driver C’s Perspective
Driver C might also have a case against Driver B. In that case, he might not be able to prove Driver A shared any fault in causing his damages, but could potentially get Driver B to be found at fault.
However, because he was speeding and following too closely, Driver C’s jury might still assign partial fault to Driver C and reduce his damages, too.
FAQs for Comparative and Contributory Negligence
How Are “Comparative Fault” and “Comparative Negligence” Different?
These phrases are essentially used interchangeably; there isn’t a real difference. To be “at fault” in the first place, you have to have committed negligence.
What Constitutes Fault/Negligence?
To meet the standard of being at fault to any degree, a party must meet all four of these elements:
- They owed a legal duty.
- They breached that duty.
- That breach contributed to the accident.
- The accident resulted in damages.
If you didn’t do anything wrong, you cannot be partially at fault.
How Do Courts Assign a Percentage of Fault?
Courts weigh the totality of the circumstances and essentially compare how bad each act was and how much it contributed to the injuries.
Courts can look at both how much it contributed to causing the accident and how much it made the injuries worse. For example, failing to wear a motorcycle helmet might not cause a crash, but it would make your head injuries worse than if you were wearing a helmet.
Call Our New Jersey Personal Injury Lawyers Today
Call (201) 777-1111 for your free case evaluation with Agrapidis & Maroules, P.C.’s Union City, NJ personal injury lawyers.