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Sharing the Blame: What happens when both sides are at fault?

The article below originally appeared in the Fall, 2015 issue of Resources Magazine, a publication of The National Alliance for Insurance Education and Research. The content and illustration come from my book Legal Concepts for Insurance Agent Ethics: How Agents Get Sued and Lose Their Licenses. The book is available as an ebook or paperback at

Not only is it part of human nature to want to share the blame for accidents with others, sometimes it really is—at least partly—someone else’s fault. For example, a brown car runs a red light, hitting a blue car that had a green light. We are inclined to say that the driver of the brown car was at fault for the accident. But what if the red traffic light facing the brown car had only been red for half a second? This means the blue car only had a green light for half a second. How did the blue car rush into the middle of the intersection so quickly to get hit by the brown car? Imagine that the driver of the blue car was intoxicated, speeding, texting, and was going to run a red light, except that the light turned green immediately before the he entered the intersection.

Is the driver of brown car in this situation still at fault for running the red light and hitting the blue car? Absolutely. The brown car ran a red light causing damage to the blue car. But should we consider the actions of the drunk driver who rushed into the intersection putting himself in a position to be hit by the brown car? Should the actions of the blue car’s driver deem the brown car’s driver less negligent, or at least limit the amount that the brown car driver should have to pay as damages? States have answered “yes” to this question in three different ways: contributory negligence statutes, comparative fault statutes, and modified comparative fault statutes.

Contributory Negligence

Negligence is defined as the failure to exercise the degree of care which a reasonable person would exercise in a given set of circumstances. In order to pursue a claim for negligence, a plaintiff—that is, the injured party—needs to show that the defendant owed the plaintiff a duty of care, breached the duty, and that breaching the duty caused the plaintiff damages. The common law tradition of contributory negligence holds that if a plaintiff is in any way at fault in contributing to his own damages, then he is barred from recovery.

Imagine that you have an old two-story house. On the upstairs floor you have a room that you know has a dangerous floor on the right side. You know to walk on the left side of that room because you might fall through the floor if you walk across the right side. If a guest wanders into the room and walks on the right side, falls through the floor, and is injured, it is likely that a court or jury would find that you have breached the duty to act like a reasonable person (in failing to repair the dangerous condition) and that your breach caused the damages. In this example you would be liable for injuries to the guest.

But, what if the person who falls through the floor is a burglar? Imagine that a burglar breaks into your house at night and is sneaking around the upstairs room when he falls through the floor. The burglar is injured and sues you for negligence. How do you feel about being found at fault for the burglar’s injuries? If you think it would be unjust to find you negligent for causing the burglar’s injuries, you might like the principle of contributory negligence. Using that analysis, we see that the burglar contributed to his own injuries by trespassing and committing a felony. Since the burglar contributed to his injury, the burglar would be barred from recovery in a contributory negligence jurisdiction.

Sometimes a complete bar to recovery does not seem as just as it does in the scenario where the burglar is injured. Instead of a burglar, let us use Mother Teresa as an imaginary example. Imagine that while she was still living, she came to visit a quiet city in the United States. She sees a fallen and injured homeless person across the street. She wants to cross the street to help the homeless person. She looks both ways to make sure that there are no cars approaching. It looks safe to cross, so she crosses the street. She does not cross at the crosswalk. (There is a crosswalk at the next intersection.) Meanwhile, Damon—the future defendant—is driving 65 miles per hour in a 35 mile per hour zone, fleeing the scene of a crime, and talking on the phone.

Damon hits and injures Mother Teresa. It is hard to imagine her suing anyone, but perhaps the hospital sues on her behalf to recover the cost of providing her medical care. A jury comes back and finds that Damon is 99% at fault and Mother Teresa is 1% at fault. The jury feels that they have done justice because Damon is really the one at fault. At the same time, they want to acknowledge that Mother Teresa was in the road, and was not using the cross walk. The jury assigned 1% fault to Mother Theresa for contributing to her own injuries. In a contributory negligence jurisdiction, Mother Teresa would be barred from recovery. She (or the hospital) would not prevail in a negligence lawsuit against Damon because she contributed to her own injuries.

You may feel that while contributory negligence provides a fair result in barring the burglar from recovery, it is not fair to bar Mother Teresa from recovery when she was only 1% at fault. In both cases, the plaintiffs contributed to their injuries and would be barred from recovery.

Many states have agreed that the contributory negligence system is too severe, and have moved to either a comparative fault system or a modified comparative fault system. The only remaining contributory negligence jurisdictions in the United States are Alabama, Maryland, North Carolina, Virginia, and Washington D.C.

Comparative Fault

In a move to soften the harsh bar to recovery of a contributory negligence system, some states have moved to a comparative fault system. In those states, the plaintiff’s recovery is reduced by his own percentage of fault. Let’s look at another car accident. The defendant’s car hits the plaintiff’s car. The defendant’s car has $10,000 in damages, while the plaintiff’s car has $20,000 in damages. The plaintiff sues the defendant for $20,000. The case goes to trial and a jury determines that the defendant and plaintiff were each 50% at fault. In a comparative fault jurisdiction, the plaintiff’s recovery is reduced by his percentage of fault. In this case, the plaintiff was 50% at fault, so instead of getting $20,000, the plaintiff will get $10,000 (50% of $20,000). Similarly, the defendant can collect from the plaintiff. In this case, the defendant suffered $10,000 in damages and the plaintiff was 50% at fault. Thus, in addition to the plaintiff having a right to collect $10,000 from the defendant, the defendant has a right to collect $5,000 from the plaintiff.

What if there were a greater disparity in fault? Using the same damages—defendant $10,000 and plaintiff $20,000—if the defendant was found 60% at fault and the plaintiff 40%, the defendant would owe the plaintiff $12,000 (60% of the plaintiff’s $20,000 damages); and the plaintiff would owe the defendant $4,000 (40% of the defendant’s $10,000 damages).

In a comparative fault state, what would happen to the burglar who fell through the homeowner’s floor? The burglar’s recovery would be reduced by his percentage of fault. If a jury determines that the burglar’s injuries are worth $1 million and that the burglar is 90% at fault, they might be thinking that they gave the defendant a victory. But what they are effectively doing is reducing the burglar’s recovery by 90%; 90% of $1 million is $900,000. The jury did not eliminate the burglar-plaintiff’s recovery—they reduced it by $900,000.

Comparative Fault Recovery Example

Plaintiff’s Injury $ 1,000,000

Plaintiff’s Fault (90%) - 900,000

Plaintiff’s Recovery 100,000

This means that the homeowner (or his insurance company) in the comparative fault jurisdiction would have to pay the burglar $100,000 if the jury determines that the homeowner was 10% at fault.

Another Comparative Fault Example

You are a grocery store owner. There is a spill of spaghetti sauce reported on aisle six. It takes you about five minutes to send a maintenance person to clean it up. Before he can get there, a patron steps in the spill and falls sustaining injuries. The patron sues you for negligence in failing to clean up the spill in a timely fashion.

The case goes to trial and a jury determines that the plaintiff / patron’s damages were $1 million and that the plaintiff was 51% at fault. As we have seen, in a comparative fault state, the plaintiff’s $1 million recovery will be reduced in proportion to his percentage of fault. The plaintiff was 51% at fault; 51% of $1 million is $510,000. This means that the patron is able to recover $490,000 from you, the negligent store owner. Comparative fault is used in some of the most populous states such as California, New York, and Florida.

Modified Comparative Fault

Some states feel that contributory negligence is too harsh in completely barring a plaintiff from recovery when the plaintiff is at any fault, and also feel that comparative fault is too generous to plaintiffs who are mostly at fault. In response, a modified comparative fault system is employed. This system bars a plaintiff from recovery if she is more at fault than the defendant. For example, in Texas, a “…claimant may not recover damages if his percentage of responsibility is greater than 50 percent” (emphasis added) (Texas Civil Practice and Remedies Code, Section 33.001 Proportionate Responsibility).

Using the grocery store example above, let’s consider the outcome in a modified comparative fault jurisdiction. The facts are the same. You and your lawyer await the jury’s decision. At the trial the jury starts by saying that you and the client are each about equally responsible. Your attorney is a little nervous. However, the jury continues by stating, “Even though both parties are about equally responsible, the patron should have seen the spaghetti sauce on the floor, and stepped around it – it is not a clear liquid.” For this reason, the jury finds that the owner is 49% at fault, and the patron is 51% at fault.”

Your attorney smiles. What happened? In Texas, and other modified comparative fault states, the plaintiff is barred from recovery if her percentage of responsibility is greater than 50%. Since the jury said that the plaintiff is 51% at fault, the plaintiff is barred from recovery, and you, the store owner, owe nothing. Although the percentage of fault, and its application, varies by statute, modified comparative fault is used in the majority of states.

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