At Work in the Laboratory – States Differ on How to Deal With the Negligence of the Plaintiff

by Jay E. Heit on January 29, 2016

Justice Brandeis wrote in New State Ice Co. v. Lieberman, that a “state may, if its citizens choose, serve as a laboratory ; and try novel social and economic experiments without risk to the rest of the country.” 285 U.S. 262 (1932).   Each State has its own tort system. At work in each tort system is how each State has decided how to deal with civil wrongs.  Even more fundamental to each is how each state deals with the concept of how allocate fault and value human life.

A survey of the nation shows that the majority of State’s have adopted a type of system known as Modified Comparative Fault.   This system is generally viewed as the middle of the road method tort system. Under this system, the negligence of both the Plaintiff and the Defendant are determined by the finder of fact and then compared against each other. The general rule being that if the Plaintiff is less negligent than the Defendant, the Plaintiff would be allowed to recover. A reduction of the entire amount of the award is made from the percentage of fault attributable to the Plaintiff.   This method is viewed as being fair to a Plaintiff who can still recover if they are partially at fault and fair to the Defendant who does not have to pay for an injury that is more greatly blamed on the Plaintiff. The criticism of this method comes when there are multiple parties who may be at fault for the injury to the Plaintiff. A decision needs to be made as to how to compare the Plaintiff’s fault to that of the various Defendant’s. The issue of joint and several liability also causes concern that needs to be addressed. The question needs to be answered just how much responsibility must the Defendant have for the injury before they joint and severally liable for the entire amount due to the Plaintiff.

South Dakota takes a different approach to dealing with comparative fault. The State works under a slight/gross rule. If a Plaintiff’s negligence is more than slight, they may not recover. One the other hand, in order for the Plaintiff to recover the negligence of the Defendant must be more than gross. South Dakota is the only state to work under this system. South Dakota still requires a jury to allocate fault between the parties. A jury determination of more than 30% is considered to be more than slight as a matter of law. See Wood v. City of Crooks, 1997 SD 20, 559 N.W.2d 558, 559 (1997).

A minority of states have adopted systems at the extreme ends of the fault system. Thirteen states have adopted Pure Comparative Fault System. This system allows a damaged party to recover even if they are 99% at fault. The recovery of the party is reduced by the percentage of fault allocated to the injured party. This system is criticized because it allows for an injured person who for the greater part hurt themselves to recover. On the other hand, the Pure Contributory Fault System goes to the other extreme. Under this system, an injured person cannot recover even if they are 1% at fault. This system is criticized for being too harsh on the injured party. An injured person can be denied compensation even for the slightest reason.

As you can see from above, each state makes a choice how to handle fault that causes injury. No system is perfect and through legislation and caselaw the system are constantly being tweaked and modified to address the issues of the current day.  All of the above systems have certain rules particular to the state. For example, in Wisconsin a child cannot be contributorily negligent if under the age of 7. Wis. Stat. 891.44 Each state may have exceptions as to when it applies its fault system to different types of claims and causes of actions. An additional issue that must be addressed is when the negligence system overlaps with a strict liability system. The strict liability system is often found with dog bites or with products liability cases. In these scenarios, a court must make a reasoned determination regarding the interplay of complex rules regarding the allocation of responsibility.

A couple of examples might show the difference of the systems. A car driver (A) is proceeding down a road in the country going 60 mph in a 55 mph zone.   A semi-driver (B) goes through a stop sign on an adjoining road and strikes the car of (A) and severely injures him. A jury assesses fault at 90% on (B) and 10% on (A). Under both the Modified Comparative Fault and Pure Comparative Fault systems, (A) would recover 90% of the damage figure awarded. Under the pure contributory fault system, (A) would receive no damages at all. In another scenario, take the same situation and this time the (B) is the person who is badly injured. In a Modified Comparative Fault or Pure Contributory Fault State, (B) would receive nothing. However, in a Pure Comparative Fault State (B) would still have a viable claim. The total damages that (B) is awarded would be reduced by 90%.

Another issue that underlies the allocation of fault is the principle of subrogation. Each state must also develop its own method of how to deal with parties who pay medical expenses for an injured person and have a right either by statute or contract to recover. Once again these decisions begin to be complex based upon the allocation of fault and each state’s rules with respect to subrogation.

Whether a case is a good case worth putting much time and effort into or simply passing on can turn simply on the location of injury. A plaintiff’s lawyer who has a choice of venue in a personal injury case is wise to research the laws of the various venues where they have a choice to sue out the case. The lawyer’s decision can make or break a case for the plaintiff.

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Jay E. Heit

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