What is Comparative Negligence?

When an accident happens, it's not always entirely one person's fault. Comparative negligence is a legal doctrine that is used to determine how much fault each party bears for an injury or accident. Comparative negligence is important because it can reduce the amount an injured party can recover in an accident, and in some cases may bar recovery altogether. Understanding what comparative negligence (also comparative fault) is can make a big difference in the outcome of your claim - and how much compensation you may receive.

Pure Comparative Negligence vs. Modified Comparative Negligence

States apply comparative negligence differently, and where your accident occurs could determine whether or not you receive compensation.

What Is Pure Comparative Negligence?

 In a so-called “pure comparative negligence” state, an injured person can recover damages in a personal injury case, but the amount of damages they can receive is limited by the percentage of fault that is allocated to them. 

For example, imagine that two cars have been in a car accident at an intersection. Driver A was in the intersection because she ran a red light. Driver B, who suffered injury, had the right of way, but he was speeding. The court determines that Driver A was 75% at fault for the accident, and Driver B was 25% at fault. Driver B’s total damages would have been $100,000, but because of his fault, they are reduced to $75,000.

If the roles were reversed, and Driver A was determined to have suffered $100,000 in damages, she would have been eligible to receive only $25,000. In other words, her award would have been reduced by 75% because she was 75% at fault.

What Is Modified Comparative Negligence?

In a modified comparative negligence state like North Dakota, a plaintiff’s recovery is barred altogether if the jury determines that their fault exceeded a certain percentage. 

There are two common thresholds:

• 50% bar rule (e.g., North Dakota): If you're 50% or more at fault, you get nothing.
• 51% bar rule (e.g., Minnesota): If you're 51% or more at fault, recovery is barred.

So in a 50/50 fault case, a plaintiff in North Dakota gets nothing, while in Minnesota, they’d still recover 50% of their damages.

Comparative Negligence vs. Contributory Negligence

People often confuse comparative negligence with contributory negligence, but the two are very different.

Legal concepts:

Contributory negligence is a harsh rule where any fault - even just 1% - bars you from recovering anything. Only a few jurisdictions still follow this rule, including Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.

For example, assume you are walking through a grocery store, checking your grocery list on your phone. Because your eyes are on your phone, you don’t see the large puddle of water in the aisle; you slip, fall on your back, and are severely injured. 

You file a lawsuit against the grocery store. The court determines that your damages are $50,000. The court also finds that you were 10% at fault because you were distracted, but the store was 90% at fault for not cleaning up the spill or warning customers away from it. 

• In a pure comparative negligence state, you would recover $45,000 (90% of 50,000). 
• In a modified comparative negligence state like North Dakota: Same result - because you're under the 50% or 51% fault limit.
• In a contributory negligence state, you recover nothing, even though your fault in the accident was minor.
  If this seems like a harsh rule to you, you’re not alone. Contributory negligence is the rule in only a small minority of jurisdictions (Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.).

Why You Need a Lawyer for Cases Involving Negligence or Fault

The percentage of each party’s fault isn’t necessarily obvious; it is a judgment call based on the evidence presented to the jury. It is understandable that an insurance company would want to do everything in their power to prove that a plaintiff in North Dakota was at least 50% at fault for their injury. If they are able to do so, they can avoid paying any damages at all to that person. 

Insurance companies work with attorneys who do nothing but defend accident and injury cases. They are experienced in identifying potential weaknesses in a plaintiff’s claim, including ways in which the plaintiff’s fault could be shown to exceed the percentage threshold that would bar their recovery. 

It is very difficult, if not impossible, to prevail against an insurance company’s seasoned legal team without a similarly experienced attorney team of your own, like the team at Fremstad Law. A knowledgeable North Dakota personal injury attorney will understand how to find and present evidence to minimize your percentage of fault and maximize your recovery for your injury. 

Contact an Experienced North Dakota Personal Injury Attorney

If you have been injured, you may have to fight to get the compensation you need and are entitled to - but you don’t have to fight alone. Located in Fargo, Fremstad Law offers powerful advocacy in personal injury matters in North Dakota and Minnesota, including those involving allocation of fault and comparative negligence. We welcome you to contact us online or call 701-401-9220 to learn how we can assist you.