Some states follow a contributory negligence model. Under contributory negligence, if an injured party is found to be at all responsible for the accident or the resulting injuries, recovery of damages is completely barred. This is a very harsh result since arguably every case could involved some minimal amount of fault.
In comparative negligence cases, the jury will determine the fault of each party. If there is comparative fault, then the jury must apportion the fault with a percentage such as 50/50, 60/40 or some other calculation of the parties’ respective fault. Once this is done by the jury, any award of damages will be reduced by the amount of fault attributed to the plaintiff.
This same calculation is made prior to trial between the respective attorneys as the parties attempt to negotiate a settlement. This is often a hotly contested issue. Often, the defense will argue a high degree of comparative negligence. On many occasions, the defense will refuse to acknowledge any liability at all arguing that the accident was purely the fault of the plaintiff. These cases will go deep into litigation, and are the claims most likely to end in trial.
Comparative negligence will arise in every kind of personal injury negligence action. This issue must be addressed early in the case for a fair evaluation of your claims. If present, the issue will likely be re-evaluated a number of times as discovery proceeds. It is important to rationally address the issue in the evaluation of your claims. Failure to do so can lead to disastrous trial results.