What are the different forms of comparative negligence?

The two different forms of comparative negligence are: (1) pure comparative negligence; and (2) modified comparative negligence. In a pure comparative negligence system, a plaintiff can recover damages even if he or she is 80 percent at fault. In other words, the plaintiff can recover damages no matter what his or her percentage of fault, as long as it is less than 100 percent.

In a modified comparative negligence system, some states apply a 50 percent rule and some apply a 51 percent rule. In a 50 percent rule, a plaintiff can recover as long as his or her negligence is less than 50 percent of the fault. In a 51 percent rule, a plaintiff must be 49 percent or less at fault in order to recover.

Who determines the percentages of fault of the parties?

The jury determines the percentage of fault of each party. The jury verdict form will contain blanks for the jury to apportion fault. The judge generally cannot alter the jury's percentages of a fault.

Why is comparative fault considered fairer than contributory negligence?

Contributory negligence was considered harsh in some instances because it was an all-or-nothing rule. Sometimes a deserving plaintiff would be denied recovery—even though he or she was far less negligent than the defendant—because the jury or judge determined that the plaintiff was also a little bit negligent. In comparative negligence, a party is only responsible for his or her percentage of the total fault, which seems to be a much fairer and equitable system.

Which states still do have contributory negligence?

Alabama, Maryland, North Carolina, Virginia, and the District of Columbia still follow a system of contributory negligence.

What is the duty to mitigate damages?

Mitigation of damages is a required element of tort law, as well as contract law. It means that a plaintiff has an obligation to lessen or reduce their damages if they can. For example, let's say that a person has his or her arm broken during a fall on a slippery floor in a department store. The person may well have a good case of negligence against the store.

However, if the person refuses to receive medical treatment and the arm worsens, the duty to mitigate may lessen the amount of recovery. Let's say that a person loses her job as a result of the negligence of another person. The person cannot simply sit at home for more than three months and expect to receive lost wages for that amount of time. The duty to mitigate damages would require the person to seek other employment more quickly.

What types of damages are most common in tort cases?

The standard type of damages available in a tort case is compensatory damages, which are designed to compensate the plaintiff for the harm that she suffered as a result of the tortfeasor's unreasonable conduct. Compensatory damages would include the medical bills incurred by the plaintiff, lost wages, pain and suffering, and other damages the plaintiff can prove that she incurred as a result of the defendant's conduct.

In tort cases, the law tries to compensate plaintiffs for their pain and suffering, as well as lost wages or other damages (iStock).

In tort cases, the law tries to compensate plaintiffs for their pain and suffering, as well as lost wages or other damages (iStock).

The other types of damages available in tort cases are nominal and punitive damages. Nominal damages are negligible damages or damages in name only. Juries sometimes will award only nominal damages if the plaintiff technically has proven her case but is not able to show any real harm. However, punitive (sometimes called exemplary) damages present a much different picture. Juries impose punitive damages to punish the wrongdoer and send a message that such conduct will not be tolerated. Punitive damages are based in part on the wealth of the defendant.

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