From the founding of America, the legal principle of contributory negligence, carried over from English common law, has been applied to personal injury claims. Under the concept, if a person suffering a personal injury was in any way negligent or careless, and thereby contributed to his or her own injury, that fact could be used to complete bar or eliminate any recovery for the injury suffered.
Because of perceptions that the doctrine of contributory negligence was too harsh, and because of the successful efforts of many defense lawyer to find some level of contributory negligence in nearly every personal injury claim, the law has been modified in every state by the new principle of comparative, rather than contributory, negligence.
Under the doctrine of comparative negligence, the finder of fact in a personal injury case (the judge or the jury) must first determine the full amount of damages sustained by an injured party. The judge/jury must then determine if the injured party was negligent in any way and, if so, to what extent.
At that point, the various states take one of two approaches. In many states, the percentage by which the injured party was at fault is simply applied to the total amount of losses, thereby reducing the damage award. For example, if an injured party shows $1 million in losses, but the jury finds that he or she was 25% responsible, the award will be reduced to $750,000. If the plaintiff (the injured party) was found to be 75% responsible, he or she will still receive $250,000.
In states such as New Jersey, however, which have adopted what is known as “modified comparative negligence,” an injured party can only receive a damage award if his or her degree of fault falls below a certain level, typically 50% (the standard in New Jersey). Accordingly, in the above example, if the plaintiff is found to be 51% responsible, there will be no damage award.
At the Law Offices of Gregg A. Wisotsky, I offer a free phone consultation to every prospective client. For a complimentary evaluation of your case, contact my office online or call me at 973-241-7468. I will come to your home or the hospital to meet with you, if necessary. All major credit cards are accepted.