LAW 512-001 – Torts II

Comparative Negligence


Comparative negligence reduces a plaintiff's recovery when he was also negligent.

The majority of states have some type of comparative negligence.

There are four types of comparative negligence:

  1. Pure Comparative Negligence

    Twelve states use pure comparative negligence, which just always reduces the plaintiff's recovery by the percentage that he was negligent.

  2. Not as Great as Modified Negligence

    Twelve states have a modified form of comparative negligence that reduces the plaintiff's recovery by his percentage of fault as long his fault is "not as great as" the defendant's. If the plaintiff's negligence is equal to or greater than the defendant's then recovery is completely barred for him.

    This is often called the 50% Rule.

  3. Not Greater Than Modified Negligence

    Twenty-one states have a modified form of comparative negligence that reduces the plaintiff's recovery by his percentage of fault as long his fault is "not greater than" the defendant's. If the plaintiff's negligence is greater than the defendant's then recovery is completely barred for him.

    This is often called the 49% Rule or 51% Rule.

  4. Slight Modified Negligence

    South Dakota has a modified form of comparative negligence that reduces a plaintiff's damages by the percentage that he was negligent as long as the plaintiff's fault was "slight" compared to the defendant's. If the plaintiff's damages is not comparatively "slight," then he is completely barred from recovery.

When there are multiple defendant, add their negligences together before comparing with the plaintiff.