Comparative Fault

          Accidents are not always one-sided affairs with one party solely responsible for the loss.  Accidents may be caused by many factors, such as the conduct of the defendant, the conduct of third parties, or even the conduct of the plaintiff. 

          In personal injury cases, a jury is faced with the sometimes difficult task of assigning fault between the plaintiff and the defendant and perhaps other individuals or entities.  This is known as comparative fault.  Under the comparative fault law all of the potential causes of the accident are deemed to total 100%.  The jury must break out of that 100%  the percentages of fault that are attributable to the plaintiff, the defendant and any third party involved in the accident. 

          There are some important rules to remember in our comparative fault system.  First, if a plaintiff is determined to be at fault, their recovery will be reduced by the total percentage that they are at fault.  For example, a plaintiff is determined to be 20% at fault for the accident.  The jury awards the plaintiff $100,000.  After the jury returns the verdict, the judge will reduce the plaintiff’s recovery by $20,000.00, representing the 20% fault the jury assigned to that person. Similarly, a defendant who is less than 50% at fault will usually only be responsible to pay the portion of fault attributable to him. 

          Second, a plaintiff can recover nothing if he/she is more than 50% at fault for the accident.  Thus, if a jury determines that the plaintiff was 51% at fault for the accident, they will recover no damages from any party. 

          Finally, a jury can assign fault to entities that are not part of the lawsuit or even immune from suit.  For example, a plaintiff is injured in a construction accident.  The defendants may argue that the plaintiff’s employer bears some responsibility for the accident.  The plaintiff’s employer is most likely immune from suit because of the worker’s compensation statute.  However, under the comparative fault law even if the person is immune from suit a jury can still apportion fault to that immune entity.  By apportioning fault to an entity that is immune from suit, the potentially liable defendants may reduce their total liability to the plaintiff.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.

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