Your Fault, Not Mine – The Comparative Negligence Defense
The primary defense in a Personal Injury negligence case, like a car accident or slip and fall case, is that the injured person contributed to causing the accident. In Pennsylvania, this is called Comparative Negligence. The defense, if proven in court, can reduce the compensation owed to a victim of an accident, or completely eliminate the victim’s ability to recover compensation.
History of the Comparative Negligence Defense
Before 1976, Negligence law in Pennsylvania recognized the defense of Contributory Negligence. Under a Contributory Negligence defense, if a defendant could prove that the injured party was negligent in any way and that negligence contributed to causing the accident, the injured party would not be able to recover any compensation. Instead, the injury party’s Contributory Negligence completely barred any recovery.
Many states, including Pennsylvania, felt that Contributory Negligence was too harsh a rule becuase even if the defendant was much more responsible for the accident compared to the injured party, the injured party still could not recover any compensation. In the most extreme case, even if the jury found that the defendant was 99 percent responsible for the accident and the injured party was 1 percent responsible, Contributory Negligence would preclude the injured party from any compensation.
The Comparative Negligence Rule
In 1976, the Pennsylvania legislature adopted a Comparative Negligence statute which governs Negligence cases involving death, personal injuries or property damages. The Comparative Negligence statute applies to all Personal Injury cases alleging Negligence, including car, truck and motorcycle accident cases, slip and fall cases and other injury cases.
Not surprisingly, the Comparative Negligence statute “compares” the negligence of the injured party and the defendant and allows recovery in some situations, while reducing the injured party’s compensation to account for his role in causing the accident.
Pennsylvania’s Comparative Negligence statute states that the fact that an injured party may have been neglient shall not bar recovery where the negligence was not greater than the negligence of the defendant, but any damages sustained shall be diminished in proportion to the amount of negligence attributable to the injured party.
There are two parts to the Comparative Negligence defense. First, there is a greater than 50 percent rule. If the injured party was greater than 50 percent responsible for the accident, he cannot recover any compensation. If he is equal to or less than 50 percent responsible, he can recover. Second, the injured party’s compensation must be reduced by the percentage of his responsibility for the accident.
At the end of a Personal Injury trial, the judge will instruct the jury that they must decide whether the defendant was negligent and, if so, whether the negligence caused damages to the injured party. The jury must also decide whether the injured party was negligent and contributed to causing the accident.
If the jury determines that both the defendant and the injured party were negligent and contributed to causing the accident, then the judge will instuct them to assign percentages of responsibility to each so that they add up to 100 percent, like 50 percent defendant/50 percent injured party, 80/20, 75/25, 40/60 etc. Then, the jury is instructed to award money for the injured party’s damages and losses.
After the verdict is reached, the injured party cannot recover any compensation if the jury found him more than 50 percent responsible for the accident. If the jury found the injured party 50 percent responsible or less, then the injured party can recover, but the judge reduces the compensation award in proportion to the injured party’s percentage of Comparative Negligence. For example, if the jury found the injured party 50 percent responsible and awarded $100,000, then the award would be reduced by 50 percent to $50,000.
Comparative Negligence is the most common defense in Personal Injury cases. Pennsylvania’s rule of Comparative Negligence allows an injured party to recover compensation if he is not more than 50 percent responsible for an accident, but reduces his recovery by his percentage of fault. The rule attempts to be fair to both injured parties and defendants by holding each of them responsible for their role in causing an accident.
Tim Rayne, Esquire – MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348 (610) 840-0124 trayne@macelree.com
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