the principle that reduces a party’s recovery based upon one’s percentage of fault. Historically at common law, an injured person (plaintiff) whose negligence contributed to their injuries, generally could not recover anything from the at-fault party. Over time, to remedy the harshness of this doctrine, courts created common law exceptions to reduce the harshness of completely barring a recovery. In the 1960’s and 1970’s, though, most states abolished the doctrine of contributory negligence either by judicial precedent or statute in favor of some form of comparative fault or comparative negligence.
Pure comparative fault: allows a party to recover for any percentage or proportion of fault caused by another.
Modified comparative fault: where a plaintiff can only recover if a defendant’s percentage or proportion of fault is more than or equal to plaintiff’s fault. Sometimes called 51% versus 50% jurisdictions, these variations can result in significant differences in outcomes.
Example 1: Assume the following: From an accident, the plaintiff has damages totaling $1,000,000. The defendant is 10 percent at fault, and the plaintiff is 90 percent at fault. In a pure comparative fault jurisdiction, the plaintiff’s recovery is $100,000. In either a 50% or 51% modified comparative fault jurisdiction, it is zero.
Example 2: Assume the following: From an accident, the plaintiff has damages totaling $1,000,000. The defendant is 50 percent at fault, and the plaintiff is 50 percent at fault. In a pure comparative fault jurisdiction, the plaintiff’s recovery is $500,000. In a modified jurisdiction where the plaintiff may be equally at fault (50%), the recovery is $500,000. In a modified jurisdiction where the plaintiff must be less at fault than the defendant (51%), the recovery is zero.
See Comparative Negligence, Comparative Fault and Proportionate Responsibility.
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