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What is comparative negligence in personal injury litigation?

Determining fault is an important part of personal injury litigation, and it is an area where the help of an experienced advocate is really necessary. This is particularly true in cases where the circumstances of the accident make a plaintiff less likely to receive adequate compensation.

One such circumstance is when the defendant accuses the plaintiff of actually being responsible for his or her injuries. Such allegations can come up in different ways, such as failing to properly signal a turn, speeding, texting, crossing the street outside a crosswalk, or failing to ride a bicycle as far to the right side of the road as possible. Depending on the state, failure to wear a seat belt or motorcycle helmet can also be used to put some of the blame for injures back on a plaintiff.

Whatever the specific accusations, charges of contributory negligence can reduce a plaintiff's award due to the principle of comparative negligence. Different states have different rules with respect to comparative negligence. Some states recognize pure contributory negligence, which bars recovery if a plaintiff is at all at fault, whereas other states utilize pure comparative fault, which allows an injured party to recover damages in proportion to the percentage the defendant was at fault.

Most states recognize some form of modified comparative fault, which utilizes either a 50 percent or 51 percent bar rule. This means that a plaintiff would be able to recover damages in proportion to the defendant's share of responsibility, unless he or she is found to have hit the bar

In our next post, we'll look at the law here in Pennsylvania and how this rule can play out in personal injury litigation

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