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It was Your Fault, Not Mine -- The Comparative Negligence Defense

Jul 3, 2008
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 the Comparative Negligence Defense. 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.

The History of Contributory Negligence in Pennsylvania
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 and was in any way responsible for causing the accident, he would not be able to recover any compensation in Court.

Many states, including Pennsylvania, felt that Contributory Negligence was much too harsh a rule because, if the injured party was determined to be negligent but the defendant was much more responsible for the accident, the injured party would still be barred from recovery. In the harshest case, even if the injured party was 1% responsible and the defendant 99% responsible, the injured party would still be unable to recover compensation for his injuries in Court.

The Comparative Negligence Rule
In 1976, the Pennsylvania legislature adopted a Comparative Negligence Statute for negligence cases involving death, personal injuries or property damage. The Comparative Negligence Statute applies to all Personal Injury cases in which negligence is claimed, including car, truck and motorcycle accidents and slip and fall cases.

Pennsylvania's Comparative Negligence Statute states that the fact that an injured party may have been negligent 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 rule. First, there is a greater than 50% rule. If the injured party is greater than 50% responsible, he cannot recover. If he is 50% responsible or less, he can recover. Second, the injured party's damages 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 whether the injured party was also negligent. If the jury determines that both were at fault for the accident, the judge will instruct them to assign fault in percentages; that is, 50% injured party/50% defendant, 60/40, 80/20, 25/75, etc. Then, the jury is instructed to award damages for the injured party's losses.

After the verdict is rendered, the injured party cannot recover damages if the jury found his fault 51% or higher. If the jury determined that it was 50% or lower, the injured party can recover, but the damages which the jury calculated will be reduced by his percentage of fault. For example, if the jury finds the negligence 20% to the injured party and 80% to the defendant and calculates the damages as $100,000, the injured party's verdict gets reduced by 20% to account for his 20% fault and he actually receives $80,000.

Comparative Negligence is the most common defense in Personal Injury cases. Pennsylvania's system of Comparative Negligence allows an injured party to recover so long as he is not more than 50% responsible for the accident, but reduces his recoverable damages by his percentage of fault. The system attempts to be fair to both the injured party and the defendant by holding both of them responsible for their role in causing the accident.
About the Author
Tim Rayne is the author of numerous publications on Personal Injury Law and is a graduate of the Temple University Beasley School of Law's Master's in Trial Advocacy Program. Tim can be reached at http://www.macelree.com/traynelaw.
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