The fact that someone slips and falls while on the property of another party does not automatically mean that the property owner is responsible. A number of factors go into the determination of whether any compensation for the injury is merited. In some cases, it’s easy to demonstrate that the property owner is at fault. At other times, the details may be more complex. That’s where the legal concept of comparative negligence comes into the picture.
What is Comparative Negligence?
Comparative negligence is a legal strategy aimed at identifying if and how each party involved in the slip and fall accident contributed to the event. The goal is to determine if both parties share the responsibility for the accident and how much of that responsibility is related to the actions and choices of each party.
An Example of How This Concept Works
During the course of the trial, it is determined that there is definitely negligence on the part of the defendant. What remains to be settled is how much of the responsibility for the slip and fall is due to the deliberate actions or lack of proper care on the part of that defendant. Based on the evidence, a judge or jury may determine that while the majority of the responsibility does lay with the defendant, the actions or choices of the plaintiff contributed to the accident.
With that in mind, the jury will attempt to decide how to split the responsibility between the two parties. The split is usually expressed in terms of a percentage. Should the jury find that the plaintiff is 20% responsible for the event, the court would award damages that amount to 80% of what the plaintiff seeks.
Percentages and Modified Comparative Fault
One of the more common applications of comparative negligence is known as modified comparative fault. In this scenario, states award or deny damages based on what is known as a 50% or 51% rule. In states following the 50% model, any party that is considered to be 50% or more responsible for the accident cannot collect any damages. In other states, any party who is at least 51% responsible will not be awarded any damages.
Is Comparative Negligence the Same as Contributory Negligence?
Some people believe that contributory negligence is just another name for comparative negligence. This is not the case. With contributory negligence, the goal is to determine if the plaintiff did anything that led to the accident. If the judge or jury comes to the conclusion that the plaintiff did contribute to the circumstances surrounding the event, all claims for damages are dismissed. That is not the same as comparative negligence, where the amount of damages may be reduced but not dismissed altogether.
It should be noted that contributory negligence is a legal concept that is found in the laws of only a few states. The majority are more likely to recognize some type of comparative negligence instead. An attorney who practices in the area of personal injury within that state will know what forms of negligence are part of current laws and how they could impact the client’s case.
Who is Responsible for Proving That Comparative Negligence Took Place?
The burden of proof of comparative negligence is the responsibility of the defense. During the course of the case, there are opportunities for the defense to introduce evidence indicating that the slip and fall may not have occurred if the plaintiff had refrained from certain actions or taken a different course of action. The claim must be considered within the realm of reason. That is, a court would not likely to be swayed by a claim that if the plaintiff had decided to shop with a different retailer, the slip and fall would never have taken place.
Slip and fall accidents that may seem simple on the surface can be more complicated than anyone realizes. Never assume that just because an accident has taken place that one party is completely responsible. Seek the counsel of a personal injury attorney and provide complete disclosure about every action that took place prior to the event. Doing so will make it easier to determine if a claim for comparative negligence could be made and have some merit in the eyes of the court.