Comparative and Contributory Negligence

7.31 – Comparative Negligence: Ultimate Outcome

7.31 Comparative Negligence: Ultimate Outcome

  1. In Cases Involving Only One Defendant and Plaintiff is Alleged to Have Been Negligent
    If you find that both the plaintiff and the defendant were negligent, and proximately caused the accident, then you must compare their negligent conduct in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%.
    I will explain to you the effect of these percentages. If you attribute to the plaintiff a percentage of negligent conduct of 50% or less, then the court will reduce his/her recovery of damages by his/her percentage of the negligence that proximately caused the accident. If you attribute to the plaintiff a percentage greater than 50%, then he/she will not recover damage from the defendant at all.
    In that event, you must stop your deliberations without making any determination as to damages.
  2. In Cases Involving Two Defendants and Plaintiff is Alleged to Have Been Negligent
    If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the accident, then you must compare the negligent conduct of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent and a proximate cause of the accident.
    I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff’s percentage of negligent conduct must be 50% or less and may not be greater than the defendant from whom he/she seeks recovery. Thus, a plaintiff whose percentage is more than 50% will not recover damages at all. A plaintiff whose percentage is 50% or less will recover from any defendant whose percentage is, the same as, or more than that of plaintiff. If you find that plaintiff’s negligence is 50% or less, but greater than that of each of the defendants, plaintiff will recover no damages, even if the total negligence of all defendants is greater than that of plaintiff.
    In the event that you conclude under either of the preceding alternatives that plaintiff is not entitled to recover, you should conclude your deliberations without considering plaintiff’s claim for damages.
    If you attribute to the plaintiff a percentage of negligence of 50% or less, then the court will reduce any damages to which plaintiff is entitled by that percentage.
    If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the accident, then you must compare the negligent conduct of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent and a proximate cause of the accident.
    I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff’s percentage of negligent conduct must be 50% or less. If the plaintiff’s percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages. A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct you have found was a proximate cause of the accident.
    If you attribute to the plaintiff a percentage of 50% or less, then the court will reduce his/her recovery of damage by his/her percentage of negligence.
    If you find that more than one party was negligent and proximately caused the accident, then you must compare the negligent conduct of those parties in terms of percentages. You will attribute to each of them that percentage which you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent and a proximate cause of the accident.
    I will explain to you the effect of your allocation of percentages. In order for the plaintiff to recover against any defendant, plaintiff’s percentage of negligent conduct must be 50% or less. If the plaintiff’s percentage is more than 50%, he/she will not recover damages at all, and your deliberations are concluded. You should not then make any determination as to damages.
    A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct was a proximate cause of the accident. However, the court will reduce his/her recovery by that percentage you find measures the plaintiff’s contribution to the happening of the accident. The allocation you make among the defendants will determine how much of the plaintiff’s damages they will pay.
    In this respect the law distinguishes between two types of damages — economic and non-economic.
    Let me explain the difference between “economic” and “non-economic” damages:
    “Economic damages” means financial or money loss and is limited to past and future lost wages and medical expenses.
    “Non-economic damages” means subjective, non-monetary losses, including, but not limited to, disability and impairment, pain and suffering, loss of enjoyment of life, inconvenience, mental anguish, emotional distress, loss of society and companionship, loss of consortium, and destruction of the parent-child relationship. As to the effect of your allocation of negligence among the defendants, plaintiff may recover all of his/her damages from a defendant found to be 60% or more responsible for the total damages. A plaintiff may recover from a defendant found to be more than 20% but less than 60% responsible for the damages the full amount of economic damages plus the percentage of non-economic damages that you find are directly attributable to that defendant’s negligence.
    Plaintiff may recover from a defendant found to be 20% or less responsible for the damages only that percentage of the damages directly attributable to that defendant’s negligence.
    Any defendant who is compelled to pay more than his/her actual percentage share may seek reimbursement from the other joint tortfeasors.
    If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the injury, then you must compare the negligent conduct or fault of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent or at fault and a proximate cause of the accident.
    I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff’s percentage of negligent conduct or fault must be 50% or less. If the plaintiff’s percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages. A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct or fault you have found was a proximate cause of the accident.
    The allocation that you make among the defendants will determine how much of the plaintiff’s damages each defendant will pay.
    As to the effect of your allocation of defendants’ negligence or fault, plaintiff may recover the full amount of his damages from any defendant found to be 60% or more responsible for the total damages. A defendant whose share of responsibility for the total damages is less than 60% shall pay only that percentage of the total damages to the plaintiff attributable to him/her/it.
    Any defendant who is compelled to pay more than his/her/its actual percentage share may seek reimbursement from the other joint tortfeasors. 

    1. Where the cause of action arose prior to December 18, 1987.
      If you find that both defendants were negligent and proximately caused the accident, then you must compare their negligent conduct in terms of percentages. You will attribute to each of them that percentage which you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%.
      I will explain to you the effect of these percentages. The percentages you find will decide the dispute between the defendants regarding responsibility for the accident but will not affect the plaintiff at all.
      If you find that both defendants were negligent and proximately caused the accident, then you must compare their negligent conduct in terms of percentages. You will attribute to each of them that percentage which you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%.
      I will explain to you the effect of these percentages. The percentages you find will decide the dispute between the defendants regarding responsibility for the accident but will not affect the plaintiff at all.
      The allocation you make among the defendants will determine how much of the plaintiff’s damages they will pay.
      In this respect the law distinguishes between two types of damages —economic and non-economic.
      Let me explain the difference between “economic” and “non-economic” damages:
      “Economic damages” means financial or money loss and is limited to lost wages, lost earnings, loss or impairment of earning capacity as well as medical services, dental services, hospital expenses, medicine, medical supplies, therapy and any other medical treatment expenses.
      “Non-economic damages” means subjective, non-monetary losses, including, but not limited to, disability and impairment, pain and suffering, loss of enjoyment of life, inconvenience, mental anguish, emotional distress, loss of society and companionship, loss of consortium, and destruction of the parent-child relationship.
      A defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award. A defendant found to be more than 20% but less than 60% responsible for the damages is liable for the full amount of economic damages plus the percentage of non-economic damages you find are directly attributable to his/her negligence.
      Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. Therefore, you will attribute to each defendant the percentage that describes or measures that defendant’s contribution to the happening of the accident.
      The allocation you make among the defendants will determine how much of the plaintiff’s damages each defendant will pay. A defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award. A defendant found to be less than 60% responsible for the damages is liable only for the amount of damages directly attributable to his/her negligence or fault.
      Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. Therefore, you will attribute to each defendant the percentage that describes or measures that defendant’s contribution to the happening of the accident.
  3. Environmental Torts
    If the court determines that the claim is based on an environmental tort it must then determine if fault can be apportioned.

IF FAULT CANNOT BE APPORTIONED:
The plaintiff may recover the full amount of the compensatory damages from any party determined to be liable. Any defendant who is compelled to pay more than his/her percentage share may seek reimbursement from the other joint tortfeasors. However, if you find a defendant to be 5% or less at fault for the injury, the plaintiff may recover only that percentage of the damages from such defendant.

IF FAULT CAN BE APPORTIONED:
If you find that the plaintiff and one or both of the defendants were negligent and proximately caused the injury, then you must compare the negligent conduct or fault of those parties in terms of percentages. You will attribute to each of them that percentage that you find describes or measures his/her negligent contribution to the happening of the accident. The percentages must add up to 100%. You should not allocate any percentage to any party who you have found was not both negligent or at fault and a proximate cause of the injury.

I will explain to you the effect of these percentages. In order for the plaintiff to recover against any defendant, plaintiff’s percentage of negligent conduct or fault must be 50% or less. If the plaintiff’s percentage is more than 50%, he/she will not recover damages at all and your deliberations are concluded and you should not make any determination as to damages. A plaintiff whose percentage is 50% or less will recover from any defendant whose negligent conduct or fault you have found was a proximate cause of the injury.

The allocation that you make among the defendants will determine how much of the plaintiff’s damages they will pay. As to the effect of your allocation of defendants’ negligence or fault, plaintiff may recover from any defendant only that percentage of the total damages attributable to that defendant.



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