TYPES OF NEGLIGENCE

When a lawsuit is brought for damages caused by an accident, the judge or jury must decide who caused the accident, since more than one person may have been negligent, including the person who is bringing the lawsuit. Once the amount or percentage of negligence has been determined for each person, damages are awarded as determined by what system of fault the state follows. There are four predominant systems used throughout the United States: "contributory negligence," "pure comparative fault," and "modified comparative fault," which has two different modification options. There are also a handful of states that have their own unique systems of determining damage awards. Virginia follows the doctrine of contributory negligence.

Contributory negligence

Contributory negligence bars any recovery by the person bringing the lawsuit if they were responsible for the accident in any way. Thus, if the judge or jury decides the person who is bringing the lawsuit is even one 1 percent at fault for causing his or her own injuries, the person bringing the lawsuit is prohibited from recovering damages.

Pure Comparative Negligence

In a pure comparative negligence system, the judge or jury decides how much fault should be allocated to each person responsible for an accident, and then apportions the amount of damages accordingly. For example, if a person is found to be 40 percent at fault for causing his or her own injuries, then the other party or parties responsible will only have to pay 60 percent of the plaintiff's damages. This is based on the percentage of fault assigned to each of them.

Modified Comparative Fault

There are also states that use a modified comparative fault system. Just like a pure comparative negligence system, a judge or jury decides how much fault should be allocated to each person responsible for an accident and apportions the amount of damages accordingly. But unlike a pure comparative negligence system, a limit on the percentage of fault of the person bringing the lawsuit is used. There are two different limits used: the 50 percent fault rule, and the 51 percent fault rule.

50 Percent Fault Rule

Under the 50 percent fault rule, a plaintiff cannot recover if he or she is 50 percent or more at fault. However, if the plaintiff is 49 percent or less at fault, he or she can recover, but recovery will be reduced by his or her degree of fault. Thus, if a person is found to be 50 percent at fault, he or she recovers nothing, but if a person is found to be 49 percent at fault he or she can recover 51 percent of his damages.

51 Percent Fault Rule

If the 51 percent fault rule is used, the person bringing the lawsuit cannot recover if he or she is 51 percent or more at fault. This follows the principle that a plaintiff who is more negligent than a defendant should not be able to recover anything. Here, if the person bringing the lawsuit is 50 percent at fault, he or she can recover 50 percent of the damages, but cannot recover anything if found to be 51 percent or more at fault.