In some states, if an injured person is also partly to blame for his or her injuries, the defendant may raise a defense known as “comparative negligence". Under this doctrine, a plaintiff's own share of the blame for his or her injury does not relieve the defendant entirely of liability. Rather, the plaintiff's own negligence serves to reduce the amount of damages that he or she may ultimately recover. At a trial, the fact-finder (usually a jury) is asked to assign a percentage of fault to each parties' actions. The plaintiff's damage award is then reduced by that percentage. For instance, a jury may award $100,000.00 to a plaintiff and conclude that the defendant was 80% responsible and the plaintiff 20% responsible. The damage award would then be reduced by 20%, leaving plaintiff with a recovery of $80,000.00.
At the settlement negotiation stage, insurance companies do not usually speak in terms of percentages of fault. Rather, the settlement offer will take into account, and reflect, any negligence on the part of the plaintiff. In responding to such a settlement offer, the partly responsible plaintiff must take his or her own negligence into consideration when determining whether an offer is reasonable.
In those states that recognize the defense of "contributory negligence," a plaintiff's own negligence (even if minor) will bar him or her from recovering any damages at all.
Contributory negligence is similar to the doctrine of assumption of the risk and in some states is even referred to as "voluntary assumption of the risk." The difference between the two doctrines is that assumption of the risk assumes that the defendant had no duty of care towards the plaintiff by virtue of the inherently dangerous nature of the activity. In contrast, under the doctrine of contributory negligence, the defendant owes a duty of care toward the plaintiff, but the plaintiff's own actions negate the possibility of recovering damages from any other at-fault party.
