In 1809, an Englishman by the name of Forrester left a large pole lying in the road as he was repairing his home. Another man, Butterfield, was riding on the road. His horse tripped on the pole, causing him to fall. Witnesses said that if Butterfield had not been riding too fast for the conditions, he would have seen the pole. The court found that Forrester was negligent. However, Butterfield was barred from recovering anything because of his own negligence.
This became known as the rule of contributory negligence. If a plaintiff was guilty of negligence, no matter how slight, his negligence operated as a total bar to recovery. Contributory negligence soon crossed over to the American legal system. But because the rule was so harsh and led to unfair, inconsistent results, opposition grew. Eventually, in the 1960s, states began adopting comparative negligence--a system under which the plaintiff’s negligence is compared to the negligence of the defendant.
West Virginia and Ohio have adopted comparative negligence. In both states, the jury assigns a percentage of negligence to the plaintiff and to any other party whose conduct caused or contributed to the injury. The total negligence must equal 100%. In West Virginia, the plaintiff can recover if his negligence is less than 50%. However, his recovery will be reduced in proportion to his negligence. If, for example, a plaintiff is 10% negligent and his damages are $100,000, he will recover $90,000. But if the jury finds that the plaintiff’s negligence was 50% or more, he will recover nothing. Ohio’s comparative negligence rule is similar. However, in Ohio a plaintiff can still recover even if he is found to be 50% negligent.
Like most rules of law, comparative negligence can be difficult to apply and is subject to important exceptions. The lawyers at Bordas & Bordas are well-versed in all the rules of negligence, including comparative negligence. If you have been injured as a result of someone else’s negligence, give us a call for a free consultation--even if it’s possible that you may have been negligent too.