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The Greens of Laurel Oak
1202 Laurel Oak Road
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Voorhees, NJ 08043

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Comparative Negligence in New Jersey

A defendant in a legal action seeking compensation for personal injury often wants to argue that the plaintiff's actions helped to cause the injury. When a defendant makes that argument, trying to avoid paying for the plaintiff's injuries, it's important to know the difference between contributory negligence and comparative negligence.

Contributory Negligence v. Comparative Negligence

Contributory negligence is a common law defense to tort actions for personal injury that the United States inherited from the British legal system. Under a strict contributory negligence system, if a plaintiff's actions contributed at all to his or her injuries, he or she is not allowed to recover damages for the injuries. Thus, even if a plaintiff was only minimally responsible for his or her injuries and the defendant's actions were mostly the cause of the plaintiff's injuries, the defendant would be free from liability and not have to pay damages.

Currently, only five U.S. jurisdictions still use a contributory negligence rule. Other states use some form of a comparative negligence rule, which developed as a way to offset the harshness of the rigid contributory negligence rule in preventing plaintiffs who were only minimally responsible from recovering for their injuries.

Forms of Comparative Negligence

Three forms of the comparative negligence rule exist:

  • Pure comparative negligence;
  • Modified comparative negligence - 51 percent; and
  • Modified comparative negligence - 50 percent.

Comparative negligence allows a plaintiff to seek compensation for his or her injuries, even if his or her actions helped to cause the injuries. The plaintiff's damages award, however, diminishes by the percentage by which he or she was at fault.

Pure comparative negligence puts no limit on how much the plaintiff can be at fault and still recover for injuries. The court simply adjusts that amount of the plaintiff's damages award by the amount that the finder of fact determines the plaintiff is at fault. For example, a plaintiff 90 percent at fault can still recover damages for the 10 percent that the defendant was at fault. If the finder of fact determines that the defendant is 10 percent liable and establishes the amount the plaintiff should receive for his or her injuries, the defendant will only be responsible for 10 percent of the damages award. New York, California and 11 other states use a pure comparative negligence system.

Many jurisdictions use one of the two forms of modified comparative negligence. Twelve states use the rule which holds that if the plaintiff is less than 50 percent at fault, he or she may recover for injuries. Once the plaintiff's fault reaches 50 percent, he or she may not recover damages.

The 21 other states using modified comparative fault allow a plaintiff to recover damages if he or she is 50 percent at fault or less. In these 21 states, once the finder of fact determines that the plaintiff is more than half responsible for the events causing his or her injuries, the plaintiff may not receive any money.

New Jersey's Modified Comparative Negligence Act

New Jersey follows a modified comparative negligence approach for recovery of damages in personal injury cases. The New Jersey Modified Comparative Negligence Act states that a person may recover for death or injury to person or property as long as the person's contributory negligence "was not greater than the negligence of the person against whom recovery is sought or was not greater than the combined negligence of the persons against whom recovery is sought." The Act follows by stating that the amount the plaintiff recovers "shall be diminished by the percentage sustained of negligence attributable to the person recovering." In other words, in New Jersey, a plaintiff may recover damages if his or her negligence was 50 percent or less.

Products Liability Claims and Comparative Negligence

The comparative negligence doctrine has particular implications when a plaintiff brings a products liability claim. The law imposes strict liability on product manufacturers for injuries incurred in the use of products defectively designed, defectively manufactured, or featuring inadequate or no warnings. Since products liability claims are strict liability claims, plaintiffs are not under an obligation to prove that the manufacturer was negligent in order to recover for injuries sustained as a result of using the product.

In a case called Cepeda v. Cumberland Engineering, the New Jersey Supreme Court considered the issue of whether contributory negligence is a defense in a product liability claim for a defective design, and decided that it is a defense in limited circumstances. The court noted that there is a difference between situations where a person gets injured as a result of a defectively designed product because he or she "negligently failed to discover the defect in the product or to guard against its existence" and those in which a person sustains an injury after he or she discovered the design defect but proceeded to use the product that he or she knew was defectively designed and dangerous.

The court held that only in the second instance, where the plaintiff "voluntarily and unreasonably proceed[ed] to encounter a known danger, [which] commonly passes under the name assumption of the risk," could the defendant raise a contributory negligence defense. Essentially, by recognizing that a product is unsafe in the way it is designed but proceeding to use the product anyway, the plaintiff assumes the risk that the design defect will cause an injury and will reduce the plaintiff's right to recover for any injuries he or she sustains after using a product that he or she knows is potentially unsafe. Using a product that the plaintiff knows has a design defect may make the plaintiff contributorily negligent under New Jersey law under certain, limited circumstances.


If you have sustained an injury and you are unsure whether you can recover for your injury because of some fault on your behalf, do not hesitate to contact an experienced New Jersey personal injury attorney. A skilled lawyer can discuss the details of your situation and give you a better understanding the damages to which you may be entitled.

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