I was in a truck accident and my lawyer kept talking about comparative negligence. What does that mean?

There are several types of negligence. Comparative negligence is a rule of law used in accident cases to determine who is responsible for the accident, and to figure out damages based on the negligence of the defendant and plaintiff.

Several years ago, Texas was a contributory negligence state. Contributory negligence meant that an injured person who was found to have any negligence of their own that contributed to the incident was barred from making a claim, that is, they could not win in court against a negligent defendant. Interestingly, it was found over time to produce unfair results, leading several states to adopt a comparative negligence test which determines percentages of negligence by a plaintiff and defendant and applies the percentage to damage recovery.

In Texas, the jury is generally asked three questions for the most basic claims. First, they are asked which parties’ negligence contributed to the incident. Second, if more than one party’s negligence is found to have contributed to the incident, then the jury is asked to apportion the responsibility between parties. For this, the jury must give a percentage of responsibility for each party, with the total adding up to 100%. Third, the jury is then asked to decide what amount of money is needed to compensate the plaintiff for his or her harms and losses.

The court then uses the answers to enter a final judgment. Let’s assume a simple case where the jury finds both the plaintiff and the defendant were negligent, that the defendant was 75% responsible and the plaintiff was 25% responsible, and that the amount necessary to compensate the plaintiff for his losses was $10,000.00.

Here, the defendant is only responsible for his portion of the losses so the defendant would be liable for 75% of $10,000.00, which is $7,500.00. It is important to note that if the plaintiff is more than 51% responsible for the losses, then the plaintiff is barred from making any recovery at all.

There are other types of negligence as well.

Negligence itself is defined as a failure to exercise the care toward others that a reasonable person would do, or taking action that a reasonable person would not. Negligence is inadvertent and can result in a variety of accidents resulting in property damage and/or injuries.

To prove negligence, a plaintiff must prove: that the party had a duty to the injured party, the defendant’s action or inaction was negligent, and that damages were caused by the negligence. Also considered is whether the damages were reasonably foreseeable.

If an injury is caused by an accident, but no one knows how the accident happened, negligence may be found according to the doctrine of “res ipsa loquitor” (the thing speaks for itself). Each state has a different method of handling negligence. Negligence is one of the biggest causes of litigation in the nation.

Negligence per se refers to when the defendant is negligent for violating a specific law. For example, a driver may be found to be negligent per se for violating rules about texting and driving, or a dog owner in a dog bite claim may be negligent per se for violating laws that require dog owners to keep their dogs restrained.

Gross negligence means a reckless indifference or disregard for the lives and safety of others and is so bad it is close to being committed with malice aforethought. If gross negligence is found to be present in a personal injury case, it can often result in the award of punitive damages in addition to special and general damages.

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