What Are the Different Types of Negligence?
March 11, 2019

Personal injury law hinges on the legal concept of negligence, or one party’s failure to act with reasonable care in a given set of circumstances. Drivers have a duty of care to obey traffic laws and drive safely. Medical professionals have a duty of care to do no harm to their patients and secure informed consent for all treatments. Daycare employees have a duty of care to provide appropriate supervision and care for the children they watch. Negligence comes in many forms, and state laws generally dictate how negligence comes into play in a civil claim for a personal injury.

Comparative Negligence

Comparative negligence effectively functions as a partial defense when a plaintiff bears partial responsibility for a personal injury. For example, a driver is speeding when a jaywalking pedestrian walks from between parked cars into the street with no time for the driver to avoid hitting the pedestrian. In this pedestrian accident, the driver is always clearly more at fault due to speeding and inherently having a duty of care to avoid hitting pedestrians. However, comparative negligence laws may implicate the pedestrian as partially liable.

In a comparative negligence state, the pedestrian in this example would still have grounds for legal action against the driver. However, he or she would lose a portion of the settlement or case award equal to his or her fault percentage. A plaintiff found 10% at fault in a $50,000 claim would lose 10% or $5,000 of the total for a net award of $45,000 instead.

Most states follow modified comparative negligence statutes that bar recovery if a plaintiff’s fault exceeds that of a defendant. If the plaintiff is 50% or more at fault, he or she may not recover damages. In a pure comparative negligence state, the plaintiff can still recover a fraction of damages even if he or she is 99% at fault for the claimed damages. However, a plaintiff with such a high fault percentage would likely refrain from taking legal action in the first place or face a counter-claim from the defendant.

Contributory Negligence

Contributory negligence statutes are less common in the United States and offer very little protection for plaintiffs who may bear even slight responsibility for their personal injuries. Under the doctrine of contributory negligence, a plaintiff cannot seek recovery if he or she in any way contributed to the damages in the claim, however slight. The only states that still follow contributory negligence statutes include Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.

Gross Negligence

When a defendant’s behavior exceeds the scope of inadvertence or typical negligence he or she may qualify as grossly negligent in a personal injury lawsuit. For example, a driver who runs a red light because of distraction with a cell phone would likely constitute negligence. A drunk driver with a history of several DUIs speeding while consuming alcohol from an open container clearly has no regard for the safety of others and would therefore qualify as grossly negligent should his or her actions lead to injuries and damages to others. Gross negligence may also constitute criminal negligence, opening the defendant to criminal charges from the state in addition to civil liability for the victim’s damages.

Vicarious Liability

In some cases, the actions of a defendant reflect upon another party due to employment or other responsibility over the defendant. Vicarious liability is the legal concept of liability for a defendant’s actions falling to the defendant’s employer, supervisor, or even caretaker. For example, a dog owner is vicariously liable for any injuries his or her dog causes to others. A parent is vicariously liable if his or her child injures another at school. A company is liable for the negligent actions of its employees.

If you or a loved one recently suffered injuries due to the actions of another party and you are unsure how negligence will come into play in your case, consult with a Phoenix personal injury attorney as soon as possible to learn more about your options for recovery.