Every industry has its jargon, its inside jokes, its own language, if you will. We see this in medicine, philosophy, even plumbing contracting. The law is no exception to this. What often looks, to a layperson, like confusion for the sake of confusion, is generally the result of efforts to gain technical precision. Sometimes this results in the creation of words that normally only lawyers use, like the word ‘tort.’ Sometimes it results in lawyers using common place words in a completely different or more specific way, as with the word negligence.
Since many of us will at some point in our lives be involved with the legal system, as a plaintiff, defendant, or member of a jury in a civil trial, let’s try to unpack some of these terms and see if we can’t clear the air a bit. This will be a sketch of the broad outlines of negligence. Specific details may vary widely from between jurisdictions and if you are actually injured you should always consult a personal injury attorney familiar with the laws of your jurisdiction.
Let’s begin with a very brief thumbnail sketch of tort law. I won’t delve into specific cases, though if you are interested in truly bizarre injuries throughout history, you will find tort law fascinating.
A tort is simply an injury (it was originally a Latin word which entered English via French during the Middle Ages) that doesn’t arise out of a contractual or criminal matter. The most common tort today is negligence. Negligence, in a legal sense, has four parts: a duty of care, a breach of that duty, the breach must not be too remote a cause of an injury, and the breach must in fact do harm to someone.
Under the common law, if an injured party (a plaintiff) bore any responsibility, even one percent, for his or her injuries, there could be no recovery. This theory of negligence is known as contributory negligence (CN). If a cyclist continues to ride a bicycle despite knowing that the brakes do not work and accidentally rides into the street and is injured by a driver who is speeding, the cyclist was traditionally barred from recovering any damages from the negligent driver. Most people today find this system fundamentally unfair, and it has grown increasingly unpopular, with only four states and the District of Columbia still using it in its purest form.
At the opposite end of the spectrum is what is called the “pure comparative fault rule” (PCF). What this means is that you, the plaintiff, can always recover, even if 99% at fault, but that your recovery will be reduced according to your degree of fault. If a jury finds that $10,000 worth of damage has been done, with Andy 40% at fault and Elaine 60% at fault, Elaine can still recover damages, but her judgment will be reduced by 60%, for a net recovery of $4000. Thirteen states use this rule.
The remaining 33 states use some form of the “modified comparative fault rule” (MCF), which is a middle way between the pure comparative fault and contributory negligence standards. In these states, any damage award will be reduced by the plaintiff’s degree of fault, just as in a PCF system. However, if the plaintiff’s fault exceeds a certain threshold, all recovery is barred. This threshold varies by state, but is generally either fifty or fifty-one percent.
Common law is generally controlling, unless superseded by statute, so most states have enacted statutes choosing one of the above theories. In the case of Ohio, the legislature has chosen to adopt a modified comparative fault rule, with a fifty-one percent threshold. A potential difficulty with the sort of damage rule Ohio uses is that a jury can attempt to take matters into their own hands.
In theory a jury should award the same amount of damages regardless of the assigned percentages of fault. The plaintiff’s recovery will then be reduced by the court. Often however, in cases where the plaintiff bears a relatively large amount of responsibility for injuries, juries may mistakenly want to preemptively reduce the total amount of an award before the court has a chance to. This is a misinterpretation of Ohio law, and it is something of which a good attorney will be mindful.