Insurance companies and defendants commonly use a defense against personal injury claims known as comparative negligence. The comparative negligence defense essentially tries to lay fault and blame for damages on the plaintiff. This absolves the defendant of liability for financial damages, or results in partial liability of the defendant.
The different types of comparative negligence defenses
There are three primary types of comparative negligence in a personal injury law setting:
Pure comparative negligence: In pure comparative negligence, the plaintiff will be awarded damages but only a percentage of the full amount of damages. Pure comparative negligence involves the plaintiff assuming liability and responsibility for a percentage of his or her damages.
Modified comparative negligence: In modified comparative negligence, the plaintiff can only receive an award for damages if the amount of his or her negligence is less than or equal to the amount of negligence committed by the defendant.
Slight-gross comparative negligence: In slight-gross comparative negligence, the plaintiff can only receive an award for damages if the court perceives his or her level of negligence to be "slight" and if the court perceives the defendant's level of negligence to be "gross."
An example of a comparative negligence defense
Imagine a pedestrian darts into a dark street and fails to use the crosswalk while wearing dark clothing. The pedestrian was virtually invisible when a drunk driver struck him or her. While it's true that the drunk driver was violating the law, in such a case, it's likely that any sober driver would have struck the pedestrian as well.
In this case, a defendant might succeed in the application of a comparative negligence defense. The result could be that the personal injury plaintiff shares in the liability and the defendant will pay less, or the plaintiff might assume full liability for his or her injuries and damages.
If the defense is trying to use comparative negligence against you in a personal injury action, it's vital to proceed with caution. Personal injury plaintiffs may need to adjust their strategies in response to such a defense.