For centuries, the law has recognized the concept of contributory negligence—the idea that someone who causes or contributes to his own injury may be limited in his recovery for losses. For many years, though, any proof of contributory negligence could be a total ban from recovery of damages. Because of the perceived harshness of this approach, and because many defense attorneys were successful in arguing some miniscule amount of contributory negligence to a jury, most states have replaced the concept of contributory negligence with what is known as “comparative negligence.”
The premise of comparative negligence is that, when both injured party and wrongdoer were in some way responsible for a loss, the determination must be made as to the relative degree or percentage of fault of each party. Not surprisingly, two different standards or approaches have evolved for comparative negligence: pure comparative negligence and modified comparative negligence.
With pure comparative negligence, an injured party has a right to recover for any losses, unless the jury determines that he or she was entirely responsible for the accident. Therefore, a plaintiff who was 75% at fault, as determined by a jury, can still recover 25% of losses. The jury will typically determine the full measure of the plaintiff’s losses, say $100,000, and then apply the percentage, allowing the injured party to recover $25,000.
With modified comparative negligence, a plaintiff who exceeds a certain degree of negligence, usually 50%, is barred from any recovery. If the jury determines the total loss suffered by the plaintiff to be $100,000, but finds the plaintiff equally (or more) liable, there is no recovery. This is the rule followed in New Jersey. As a side note, New Jersey law allows a plaintiff to recover the full amount of damages from any defendant found to be more than 60% responsible.
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