Comparative Negligence

Comparative negligence is a rule courts use to reduce a plaintiff's compensation by the percentage of fault assigned to that plaintiff. For example, if a jury finds a plaintiff 20% at fault and awards $1,000,000, the recovery is reduced to $800,000. It replaced the older, harsher rule (contributory negligence) that barred any recovery if the plaintiff was even slightly at fault.

Origin

The doctrine emerged in U.S. law during the 20th century as states moved away from the strict contributory negligence rule inherited from English common law. Mississippi enacted the first general comparative negligence statute in 1910, and most states adopted some form of it through the 1970s and 1980s, either by statute or judicial decision.

Significance in Asbestos Context

In asbestos cases, defendants sometimes argue that the patient bears part of the blame, for smoking, for ignoring warnings (when warnings actually existed), for not using available respirators, or for continuing to work after learning of risks. If a jury accepts this, the patient's award can be reduced by their assigned percentage of fault. This matters most for lung cancer claims, where smoking history is often raised, and less so for mesothelioma, where the cancer is overwhelmingly attributed to asbestos regardless of smoking. The rule varies dramatically by state: in "pure" comparative negligence states, a plaintiff can recover even if 99% at fault (recovering 1%); in "modified" states, recovery is barred if the plaintiff is 50% or 51% or more at fault.

Example Sentence

Because the case was filed in a modified comparative negligence state, the lawyer explained that if the jury found the patient more than 50% responsible for his exposure, he would recover nothing.

Related Terms

Contributory Negligence, Assumption of Risk, Apportionment of Damages, Joint and Several Liability, Several Liability

Notes

• Ask your attorney which state's law will govern your case and whether that state uses pure or modified comparative negligence. The answer can change the value of your claim significantly.
• Expect defendants to probe your smoking history, military service, hobbies, and any safety training or warnings you received; preserve employment records, union records, and any documentation showing you were not warned about asbestos.
• For mesothelioma specifically, courts generally recognize that smoking does not cause mesothelioma, so smoking-based fault arguments tend to carry less weight than in lung cancer cases.
• If you were never told the materials you handled contained asbestos, make sure your legal team documents this. It directly counters defense arguments that you assumed the risk.