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One of the more difficult legal concepts that many of my clients must come to grips with, is the difference in the ideas of ‘comparative negligence’ and ‘shared liability’. In truth, it is not a difficult distinction to understand and can best be explained as a causal relationship.

If you remember those discussions we have had in the past on shared liability, then you will recall that shared liability is a percentage based system that allows a judge or jury to determine the percentage by which all involved parties may share the liability for an incident and therefore responsibility for the damages incurred. Comparative negligence is closely related, but with the added burden that it must be proved that beyond simple liability, that a party acted in a negligent manner further escalating the situation or creating it to begin with.

This may sound like a minor distinction, but in the eyes of the law it is a difference that can have major implications. It must be remembered that while negligence is not necessarily a prerequisite for liability, as a general rule. If negligent behavior is found, liability is more easily established and will normally follow.

I hope that is not too complicated an explanation, but let me offer this example for the sake of clarity. You are riding down the road at night and suddenly encounter broken pavement from a road repair project and are thrown from your bike.

In the ensuing investigation, it is found that the construction company followed the letter of the law and had properly marked the area where they were working. What happened to their cones, barriers and lights cannot be established. In this case a jury might still find they have some liability in the case, but it would be more difficult to prove negligence.

Now alter the situation slightly. Same construction site, but this time it is found that the road crew had failed to check the batteries on their warning lights and that the lights were not flashing their warning as a result. This is clearly a case of negligence and liability would therefore follow automatically.

In short, liability means responsibility can be established while negligence requires the added burden of proof that someone either did something that was contrary to established best practices or failed to behave in a way that good sense would have dictated.

Comparative Negligence and Shared Liability

At this point it should be fairly clear how the relationship between negligence and liability works and the addition of the words comparative, as in comparative negligence and shared, as in shared liability, should not add further confusion, but if anything should bring a bit of clarity.

Once we grasp the concept of shared liability as being a percentile division of responsibility then comparative negligence is clearly a measurement of who messed up by the greatest degree and therefore should bare the greater percentage of liability. In simpler terms, if the jury decided, based on evidence, that you were speeding in our example and were therefore 75% negligent in your behavior then only 25% of the liability could be placed at the feet of the defendant construction company and you would only be eligible to receive 25% of the damages in the case. The percentage of responsibility naturally follows the inverse of the degree of negligence that applies to causing the accident.

I hope this has brought a little clarity to what is, at times, a rather foggy relationship. As always, it is my hope to educate as well as to serve my clients, regardless of the situations they find themselves in. Unfortunately, math is math and gives many of us a hard time.