“Who’s at fault?” When an event such as an auto accident causes injuries, this is one of the first questions asked. But what happens when the answer isn’t so clear? Often, situations arise where both parties share a portion of the blame for the events that transpired. When this happens, comparative negligence needs to be established.

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What is Comparative Negligence?

Comparative negligence is a principle of tort law that establishes the amount of damages a plaintiff can recover based on the degree of negligence each party contributed to the incident. For example, if the court reviews the element of negligence for both parties and assigns 80% of the fault to the defendant and 20% to the plaintiff, the plaintiff may only recover 80% of the damages.

Not every state treats comparative negligence the same way. Depending on the type of comparative negligence recognized, a plaintiff may be awarded damages even if they hold the most fault. On the other hand, they may receive nothing. The types of comparative negligence are as follows:

Pure Comparative Negligence: Under this type, the plaintiff may claim damages no matter the size of their own fault. This means that even if the plaintiff is 99% at fault, they may still claim the 1% of damages that the defendant was responsible for.

Modified Comparative Negligence: Most states follow some form of the modified comparative negligence rule. With this practice, a plaintiff may recover damages up to a certain limit based on how much they are at fault. The two types of modified comparative negligence that exist are the 50% and 51% bar rules.

  • Under the 50% bar rule, the plaintiff cannot recover damages if they are 50% or more at fault.
  • Under the 51% bar rule, the plaintiff cannot recover damages if they are 51% or more at fault.

Both Indiana and Michigan use modified comparative negligence and recognize the 51% bar rule.

Need Assistance Navigating Comparative Negligence?

If you’re filing a lawsuit where both parties are at fault, having an experienced legal team to guide and assist you can help make the lawsuit process easier. Get started with the seasoned team at Foley & Small today and see the difference over 30 years of legal knowledge can make.

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