COMPARATIVE NEGLIGENCE – LAW 101

Hello, I’m attorney Kyle Bachus. The legal world is full of overly complicated jargon and terminology that can be intimidating if you don’t know what it means. In my law 101 video series, I’m breaking down some commonly used legal terms so you can be informed and confident should you ever need to take legal action.

In this episode of law 101, we’re going to break down the phrase comparative negligence.

Now we in other videos have talked about negligence, and that is acting unreasonably under the circumstances towards others. But what happens if somebody has acted unreasonably towards you, but you may have also done something that was unreasonable. How does the law deal with what is called comparative fault or comparative negligence? Well, here’s how it plays out, okay.

First, you acting on your own have the same duty as the other people involved in the situation have, and that is, you have to be acting reasonably under the circumstances. What if somebody else runs a red light and hits your car, and so they’ve acted unreasonably. But what if you were speeding through the intersection. Well, you may be comparatively at fault for your failure to act reasonably under the circumstances. And in most states, the jury is asked to weigh the comparative negligence.

And so what happens really at the end of the day is, in some states, if you’re 50/50 at fault, you can’t make any claim whatsoever. That’s called a modified comparative negligence state. In others, you could be more than 50% at fault, but your damages are going to be reduced by the amount of your fault. So if the value of your case were a hundred dollars, okay? Just hypothetically.

A hundred dollars and you were forty percent at fault; the court would reduce that hundred dollars to sixty dollars. They would reduce it by forty percent that you were at fault. So comparative negligence is a huge component. We need to demonstrate not only that the person who caused your injury is at fault, right? That they failed to act reasonably under the circumstances. But we also have to demonstrate that you or our client are not comparatively negligent in causing your own injuries.

Because to the extent that you are comparatively negligent, the value of your claim will be reduced on a pro-rata basis by your comparative fault. Now, one of the components of comparative negligence is something called assumption of the risk. What if you know the risk, you’re walking down a sidewalk, and you see the sidewalk in front of you has not been cleaned off from snow or ice. Now despite the fact that the person who owned the home may have a responsibility or the apartment complex may have a responsibility to keep that area free of snow and ice.

If you assume the risk of walking across that snow and ice and you get hurt, that may be used against you under the comparative negligence doctrine. Colorado is a modified comparative negligence state. We are not a pure comparative negligence state, and that means that the consequences and the stakes are really high with respect to comparative negligence. Because if you are found to be 50% at fault or more, you get no recovery under the law.

And so that’s why you might find in Colorado that insurance companies for the at-fault, is always looking for ways to put blame on the non-at-fault party, to try to get to that 50/50 where they don’t owe anything at all. If you have questions about comparative negligence, or about assumption of the risk, we’re happy to answer those personally for you at Bachus & Schanker. To learn more about other law topics that can help you feel informed and confident about the law, make sure to check out more videos in this series.

COMPARATIVE NEGLIGENCE – FAQs

The rule for comparative negligence is Colorado Revised Statutes § 13-21-1111. The victim’s shared fault for an accident does not prohibit financial recovery as long as the victim’s negligence is not as great as the negligence of the party from which they are seeking compensation.

Based on the comparative negligence definition, the amount the victim receives is diminished in proportion to their degree of fault.

The 50 percent rule allows a victim to receive compensation for personal injury if they are not 50% or more responsible for the accident. If they are 49% at fault, they may still receive compensation. However, if the jury or court determines that they are 50% or more at fault, they recover nothing.

The jury undertakes a two-step process:

  1. Determine the total amount of the victim’s damages
  2. Assign a percentage of fault to the defendant

Then, the court deducts the defendant’s percentage of fault from their total compensation. For example, if the defendant was 20% at fault for the accident, they may recover 80% of the total amount of damages. If the jury determines that the injured party is 50% or more at fault, the court enters a judgment for the defendant, and no damages are awarded.

Here are the three different types:

CONTRIBUTORY NEGLIGENCE

If the defendant has any fault for the accident, they may not recover anything at all. Even if they are only 1% at fault for the accident, they cannot receive financial compensation.

PURE COMPARATIVE NEGLIGENCE

A victim may recover from those at fault, regardless of the percentage that the victim is at fault themselves. They may be 99% at fault, but they can still claim compensation for the 1% that someone else is at fault.

MODIFIED COMPARATIVE NEGLIGENCE

The injured party may recover financial compensation if they do not share significant fault for the accident. Some jurisdictions use 50% as the cutoff, and other jurisdictions use 51% as the cutoff where the victim can no longer receive compensation.

For all types of comparative negligence, the victim’s damages are reduced based on the percentage of fault assigned to them. For jurisdictions using modified comparative negligence, the injured party receives nothing if their negligence meets or exceeds that of the defendant.

Colorado uses modified comparative negligence with 49% as the most the victim can be at fault and receive monetary compensation.

A victim is speeding on the road. They are going 10 mph over the speed limit when they approach an intersection. As they head straight through the intersection, another vehicle makes a left turn. The second vehicle doesn’t have the right of way, but they attempt to make the turn nonetheless—a car accident results.

At trial, a jury decides that the first driver is 25% at fault for speeding. The driver who made the improper turn is 75% at fault. The speeding driver suffers $50,000 in damages, and the driver who makes the improper turn is not injured. In this case, the victim may receive compensation, but the amount of damages is reduced by 25%.

Comparative is different from contributory negligence because it still allows the victim to receive compensation even if they have fault. Contributory negligence is unforgiving – if the victim shares any blame, they get nothing.

States that recognize comparative negligence believe that contributory negligence produces unfair results. Even with severe injuries, if the rule is contributory negligence, a victim may receive nothing—even if their fault is very slight and their damages are great. States with comparative negligence believe that it is more equitable to look at the entire circumstances, allowing a jury to consider all the relevant factors when deciding the claim.

No, it is not a defense to strict liability in Colorado defective products claims. The courts have said that strict liability is based on the consumer’s expectation of the product’s performance and not on the defendant’s behavior (Kinard v. Coats Co. Inc., 37 Colo. App. 555 (1976)2).

Other defenses to product liability claims include the defendant’s misuse of the product and voluntary disregard for a known risk.

Comparative fault and negligence are similar, but not the same. Comparative fault may encompass any type of legal fault, including negligence. Negligence is the absence of reasonable or ordinary care. Generally, the two terms are used interchangeably when discussing shared responsibility for a personal injury.

The defense may raise the issue of comparative negligence in response to a complaint for personal injury compensation. Then, the parties must litigate the issue as part of the claim. The jury decides whether the victim shares fault as well as the percentage of fault assigned to each party.

It may be worthwhile to bring a personal injury claim if you are partially at fault. The compensation you may receive may still be significant even if you share some fault for the accident.

Even with shared fault, most personal injury claims don’t go to trial. When our lawyers represent you, we can help you understand the range of fault that may be attributed to you. Then, that may be a consideration as you negotiate and decide whether to accept any settlement offers from the insurance company.

SOURCES:

1C.R.S. § 13-21-111

2Kinard v. Coats Co. Inc., 37 Colo. App. 555 (1976)