Most people, who file personal injury or property damage claims, automatically assume that if the defendant’s fault is proven in court, they stand a good chance of receiving compensation. Few are aware that their case and its outcome will be impacted if the court probes the plaintiff’s contribution in the act which led to the damages/injuries.

If you are under the impression that the court and the jurors are always sympathetic towards the damaged party, think again! Negligence laws vary significantly from one state to another. In general, two legal systems are followed in the country when it comes to negligence related restitution.

Pure Contributory Negligence: A draconian standard that was historically common, contributory negligence is the most unfair and oppressive for the plaintiffs. Today, the law prevails in 4 states along with the District of Columbia. Under the contributory negligence standard, the defendant walks free without paying a penny in compensation even if the plaintiff shares 1% of the blame for the accident or act that caused the injury.

For instance, if you were in an accident or suffered injuries due to medical malpractice and go to court in Alabama, Maryland, Virginia, North Carolina or the District of Columbia and if the defendant’s lawyer can prove that you were partly to be blamed for the accident/incident, you will not be able to recover any compensation at all. Under this law, even if the plaintiff is 5% at fault, he/she will not recover anything from the “95% at fault” defendant.

The only way to overcome this standard of negligence is if the plaintiff’s attorney can prove that the defendant acted wantonly and willfully which led to the damage/injury. Similarly, if defense can prove that the plaintiff had the last chance to prevent the incident from occurring but failed to do so, this would again prevent recovery.

Pure Comparative Negligence: Alaska, California, Arizona, Florida, Kentucky, Mississippi, Louisiana, Missouri, New York, New Mexico, Washington, Rhode Island and South Dakota are the thirteen states that follow Pure Comparative Negligence Standards. Pursuant to this law, the plaintiff can claim compensatory respite from the defendant even if the plaintiff is 99% at fault for the incident or accident.

This law has been heavily criticized for allowing plaintiff’s to seek damages from “less-at-fault” defendants. However, in the 13 states where this law is recognized the recovery for the damaged party will be impacted by his/her degree of contribution in the negligent act.

Modified Comparative Negligence/ Proportionate Responsibility: 33 States have adopted the Modified Comparative Negligence Standard that allows/bars the damaged party from seeking compensation based on the degree of the plaintiff’s responsibility in the act. Different schools of thought are followed when it comes to the implementation of this law.

For instance, 12 states including Kansas, West Virginia, Idaho, Georgia, Arkansas, Colorado, North Dakota, Nebraska, Utah, Maine, Tennessee and South Carolina have the 50% Bar Law. This means that the plaintiff cannot claim for recovery of damages if he/she holds 50% or more accountability for the incident. So, in these states, the plaintiff should be 49% or less at fault if he/she is to receive compensation.

The remaining 21 of the 33 states, which have implemented the Modified Comparative Negligence standard, follow the 51% Bar Rule. This allows the plaintiff to recover if he/she is 50% or less at fault. So, if half the responsibility for the accident lies with the defendant, he/she would still receive some compensation.

The states that follow this version of the Modified Comparative Negligence Standard include Wyoming, Connecticut, Texas, Delaware, Wisconsin, Pennsylvania, Vermont, Texas, Oregon, Ohio, Oklahoma, Montana, Michigan, New Jersey, Minnesota, New Hampshire, Massachusetts, Indiana, Hawaii, Iowa and Illinois.

Contributory vs. Comparative vs. Modified Comparative

To understand how negligence laws work in different states, let us consider the following examples:

• If you are injured in an accident in DC and the jury finds that you can be held 5% responsible for the mishap, you will not be able to recover any damages.
• In contrast, if the same litigation is shifted across the country to California and if you are awarded $100,000 in compensation, but you are found to be 95% responsible for the accident, you would still receive $5000 after your percentage of liability is deducted from the recovered amount.
• Consider a similar claim argued in Idaho and you will find that court will first determine the percentage of blame that lies with you. If you are found to be 40% at fault, you get 60% of the recovered amount. If you are found to be 49% at fault, you still get a bit more than half of the damages claimed. However, if the defendant can prove that you were equally to be blamed for the accident, you get nothing.
• Likewise, if the case is handled in a state with the 51% bar rule of the modified comparative negligence jurisdiction, at 51% fault the defendant cannot recover any damages. However, if the awarded amount is $10,000 and your lawyers can prove that you hold no more than half the accountability for the accident, you still get $5000.

What qualifies as negligence?

Although negligence standards vary among states, what constitutes negligence is very clear. Typically, the following are the elements of a negligence case:

• The defendant acted despite owing a duty to refrain from acting.
• The defendant did not act despite owing the duty to act.
• Breach of duty caused the damages or injury to the plaintiff.
• The act or the omission of an act on part of the defendant was a foreseeable cause of the plaintiff’s damages.
• The plaintiff suffered bodily harm, financial damages such as lost wages or property damage due to such acts or the omission of acts.

How would you fare in the state of Kansas if you are the plaintiff?

Kansas adopted the 50% bar rule in 1974. So, you will not be barred from recovering compensation as long as your lawyers can prove that you are no more than 49% responsible for the incident that led to the injury. However, the damages recovered will be diminished based on your percentage of responsibility.

Also, Kansas follows the pure several liability legal system. This means that each defendant will only have to pay an amount commensurate to the degree of his contribution in the negligent act. Consider this example- Suppose you were in a mishap that involved 3-4 motorist but only 2 of them could be traced and you sued them. The jurors find that these drivers are 50% accountable for the accident, while the other two motorists, who were not sued, share the remainder of the responsibility.

In this scenario, even if you win the complete recovery amount of $100,000 that you filed for, you would only receive $50,000 because the other two motorists, who were not sued, hold the remainder of the blame. Moreover, non economic damages recovered through personal injury action are limited to $250,000 for each plaintiff against the defendants (Kan. § 60-19a02).

You may have already guessed that with all these laws and by rules, a plaintiff does not stand a chance against the defense attorneys unless he/she goes to court with an experienced lawyer fighting by his side. So, if you or a loved one has been in an accident/incident and have suffered injury or economic damages, it is imperative to get in touch with an able attorney. An experienced lawyer can help you to claim and win the rightful restitution.