Recovering Damages for an Injury Where I'm Partly at Fault

The basics of New Jersey's modified comparative negligence rule

By S.M. Oliva | Reviewed by Canaan Suitt, J.D. | Last updated on May 2, 2023 Featuring practical insights from contributing attorney Michael J. Epstein

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Accidents are often messy affairs where it’s not obvious who was at fault. And even if you’re certain someone else caused the accident that injured you, you are still worried that the other side may try and blame you.

Fortunately, New Jersey is one of many states that employ a “modified comparative negligence” rule in personal injury cases. This means you can recover damages from a negligent defendant, even if you were not blameless for the accident.

However, your actual damages may be reduced based on your assigned percentage of fault for the accident.

Plaintiff Cannot Be More At-Fault Than Defendant

The idea behind comparative negligence is simple: A judge or jury looks at the facts presented in a personal injury claim and compares the relative fault of the parties.

For example, let’s say you are in a car accident and sue the other driver for negligence. A jury hears your case and decides the defendant was 85 percent responsible for the auto accident. Your “comparative fault” was 15 percent. If the jury then decides you suffered $100,000 in losses because of the accident, the judge will reduce the final award by 15 percent, to $85,000.

“It’s the plaintiff’s burden to prove the defendant is negligent, and the defendant’s burden to prove the negligence of the plaintiff,” adds Michael J. Epstein, who litigates personal injury cases at The Epstein Law Firm in Rochelle Park. “So, whoever is saying someone else is negligent has the burden of proof.”

It is important to note, however, that under New Jersey law you get nothing if the defendant was less at fault than you.

In other words, you may only recover under New Jersey’s modified comparative negligence if you were less than 50 percent to blame. This is what “modified comparative negligence” means; in a “pure comparative negligence” state (such as New York), you can recover some damages, even if you were 99 percent at-fault.

It’s the plaintiff’s burden to prove the defendant is negligent, and the defendant’s burden to prove the negligence of the plaintiff. So, whoever is saying someone else is negligent has the burden of proof.

Michael J. Epstein

A Classic Example of a Slip-and-Fall

“Let’s take a classic fall-down case,” Epstein says.

“Guy gets out of his car at a supermarket; there’s ice and snow on the pavement; it hasn’t snowed in two days, but did the three days before that, so there was melting and refreezing. As he’s walking in, he goes down on black ice and breaks his ankle. He alleges the supermarket and/or the plow people were negligent. The supermarket says, ‘Hey, Joe Smith, it’s the dead of winter and you should have been more careful. There was a huge snowstorm, so what do you expect us to do?’”

In the example, each side proves there was at least some negligence on each side, and it then becomes the duty of the jury to apportion fault.

“So, let’s say it’s, ‘Defendant, you’re 80 percent; plaintiff you’re 20 percent.’ The damages are $500,000, and the plaintiff recovers half-a-million, minus 20 percent, so a $400,000 judgment,” Epstein concludes.

How a Good Personal Injury Lawyer Can Help

In New Jersey, attorneys are permitted to discuss the percentages of fault to the jury.

“That can often be very helpful,” Epstein says. “What good lawyers try to do to reduce the comparative fault is to demonstrate that their actions were reasonable. A common refrain from the defense is, ‘Where were you looking when you fell?’ And the plaintiff might say, ‘I was looking straight,’ because in real life, who looks down?”

Keep in mind that the 50-percent comparative negligence standard applies to all kinds of personal injury cases, including medical malpractice, slip and fall accidents, product liability, and car accident cases.

A qualified New Jersey personal injury attorney can provide legal advice on how your state’s negligence laws may affect your personal injury lawsuit as well as potential settlement offers. Many personal injury attorneys provide free consultations with their legal team to learn more about your case.

For more information on this area of law, see our overviews of personal injury, trucking accidentsmedical malpracticeproduct liability, and motor vehicle accidents.

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