If you slip and fall and injure yourself on someone else’s property, can the property owner avoid liability by claiming that the injury was your fault? In some situations (and in some states) the answer could be yes.
Let’s first take a brief look at the law of slip and fall liability. Then we'll explain the legal concepts of comparative negligence and contributory negligence, and how they can affect a slip and fall case.
In order to win a slip and fall case, you need to be able to prove that the property owner was somehow negligent with respect to ownership and/or maintenance of the property. In general, negligence means not exercising reasonable care, or doing something wrong.
Simply because you slipped and fell on someone’s property does not mean that the owner was negligent. And just because the property might have been in an unsafe condition does not automatically mean that the property owner was negligent either. You have to show that the property owner knew -- or should have known -- that the premises were in an unsafe condition, and failed to take reasonable steps to fix the problem.
Learn more about Proving Fault for a Slip and Fall.
Comparative negligence has to do with whether the plaintiff (the injured person) was negligent in connection with the underlying accident. It is called “comparative” negligence because when it's time for the jury to weigh the evidence at trial, they must compare the plaintiff’s negligence with the defendant’s negligence.
Remember, this is a defense that must be raised and established by the defendant. In other words, the person being sued is required to prove that the plaintiff was comparatively negligent; the plaintiff does not need to prove that he or she was not negligent. That means the defendant has to show that the plaintiff did not exercise reasonable care or that the plaintiff did something wrong or unsafe, and that the plaintiff’s negligence was a cause of the plaintiff’s own injury.
The first thing to remember is that a judge or jury (or insurance company) only determines the victim’s comparative negligence after it determines whether the defendant was negligent. If you go to trial in a slip and fall case, and the jury finds that the defendant was not negligent, the case is over. There is no need to determine whether the plaintiff was negligent or not.
If, however, the jury finds that the defendant was negligent, then it considers whether the plaintiff was also negligent. And if the jury finds that the plaintiff was also negligent, then it has to compare the fault of the plaintiff versus the fault of the defendant. For example, the jury might find that the plaintiff’s injury was caused 80% by the defendant’s negligence and 20% by the plaintiff’s negligence. So, in that case, the plaintiff is said to have been 20% at fault.
The most important thing to know about comparative negligence is that the plaintiff’s comparative negligence will reduce the amount of the plaintiff’s verdict by the percentage of fault assigned to the plaintiff. Let’s look at a couple of examples of how comparative negligence affects a plaintiff’s verdict.
Different states follow different types of comparative negligence rules. One variety is called “pure” comparative negligence, which is followed in only a handful of states. In pure comparative negligence, the plaintiff’s verdict is reduced by his or her percentage of fault. Let’s say that the plaintiff was 70% at fault, the defendant was 30% at fault, and the jury awarded the plaintiff $100,000 in damages. In this case, the plaintiff’s verdict would be reduced to $30,000 (which is 30% of $100,000).
A more common type of comparative negligence is called “modified” comparative negligence. Under this system, the plaintiff’s fault cannot be more than the defendant’s fault in order for the plaintiff to recover any compensation. That means, if the jury finds that the plaintiff was 51% at fault, the plaintiff loses (gets nothing). But if the negligence is 50/50, the plaintiff can still win in most "modified" comparative negligence states. If, for example, the plaintiff is awarded $200,000, and the jury finds that the plaintiff and defendant were both 50% at fault, the judge would enter a verdict for $100,000.
However, some states that use modified comparative negligence require that the plaintiff’s fault be less than that of the defendant. In those states, if the jury finds that the negligence is split 50/50, the plaintiff loses. In those states, the plaintiff can only win if his/her fault was less than 50%.
Very few states still follow "contributory negligence" rules. In these states, there can be some pretty harsh outcomes for personal injury plaintiffs. That's because the plaintiff loses if he/she was even the slightest bit negligent in connection with the underlying accident. Even if the plaintiff was 1% at fault for his/her injury, the plaintiff will get nothing.
Learn more: Do You Have a Valid Slip and Fall Claim?