Just because you are injured in an accident does not mean that you will be compensated. Recovery can be complicated if you are claimed to be negligent in connection with the accident. Originally, states used the traditional rule of contributory negligence, which barred recovery if the plaintiff was at all negligent. However, in recent years, many states have modified the rule of contributory negligence to allow recovery even if the plaintiff was negligent. This modern rule is called comparative negligence.
Under comparative negligence, a judge or jury determines the full amount of damages sustained by a plaintiff, and then assigns a fault percentage to the plaintiff and defendant. The combined fault percentages will equal 100%. For example, if you are awarded $1,000,000 in damages, but you are determined to be 20% at fault, your award will be reduced to $800,000.
In 1982, New Jersey revised the comparative negligence rule. The modified rule states that if a plaintiff has a higher fault percentage than the defendant, the plaintiff is barred from recovery. Thus, if the plaintiff is determined to be 51% or more at fault, s/he will be barred entirely from recovery.
If a negligent plaintiff sues multiple negligent defendants, New Jersey uses an aggregate approach to recovery. This means that a plaintiff may recover if his fault percentage is less than the total fault percentage of the defendants combined. Therefore, if Moe sues Larry and Curly and is awarded $1,000,000 in damages, and Moe is found to be 40% at fault while Larry and Curly are each determined to be 30% at fault, Moe will still be able to recover $600,000. Even though Moe’s 40% fault percentage is higher than Larry’s and Curly’s individual fault percentages, Moe may still recover. In addition, a plaintiff may recover fully from a defendant in a case involving multiple defendants if that defendant is found to be at least 60% at fault. Thus, if Larry is 20% at fault but Curly is 60% at fault, Moe may recover all of his damages from Curly.
New Jersey’s modified comparative negligence rule is a complicated legal concept that can have a substantial effect on the outcome of a personal injury lawsuit. A plaintiff may be left with a significantly reduced award or no award at all. A defendant may be forced to pay an entire award even if multiple defendants were found negligent. Charles D Whelan III is a highly experienced personal injury attorney who can give you the advice, analysis and strategy you need to help get you the best result.
(Assistance of Zachary Whelan, second year law student at Rutgers Newark Law School in the preparation of this blog is gratefully acknowledged.)