Whose Fault Was It: Comparative or Contributory Negligence?

Every accident is different: sometimes many people are responsible for the plaintiff’s injuries; other times, the plaintiff’s fault may have partially caused his injures. Comparative fault and contributory fault are general defenses a defendant may raise in an attempt to reduce the damages a defendant must pay. Contributory fault means that the plaintiff contributed to the wrongful act, injury, death or loss and traditionally served as a complete bar to recovery for the plaintiff. On the other hand, comparative fault is a system where courts allocate percentages to the parties involved in the suit based on each person’s fault.

Louisiana is a comparative fault jurisdiction.
Almost all U.S. jurisdictions have shifted away from contributory fault and have adopted comparative fault systems. Dependent on the jurisdiction, however, courts may apply a “pure” comparative fault system or a “modified” comparative fault system. Under a “pure” comparative fault system, the jury allocates damages based on each person’s fault and imputes a certain percentage of fault to each party. The plaintiff is not barred from recovery, even if the plaintiff is primarily responsible for his own injury. For example, if the plaintiff is 90 percent at fault, the plaintiff may still recover his 10 percent.

On the other hand, a modified comparative fault system permits the plaintiff to recover as long as the plaintiff’s fault is not greater than the defendant’s fault. As an illustration, if the plaintiff is 51 percent at fault and the defendant is 49 percent at fault, the plaintiff will not recover any damages for his injury. If a jurisdiction uses a modified comparative fault system, this jurisdiction may still incorporate the “all or nothing” approach of contributory fault into its comparative fault scheme of recovery.

Louisiana lawmakers have adopted a pure comparative fault system; Louisiana Civil Code article 2323 requires the allocation of fault among “all persons” causing or contributing to the injury, death or loss, even if the person is not a party in the suit.

For further questions, contact Broussard & David, LLC at 888-337-2323(toll free) or 337-233-2323 (local).

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