Article by Na Lee Ha, Esq.
Comparative negligence reduces a plaintiff’s recoverable damages by their own degree of negligence. Pennsylvania follows the 51 percent bar rule, which precludes plaintiff from recovery of damages if they are found 51% or more at fault. In Pennsylvania, it is the defendant’s burden to establish comparative negligence and show that plaintiff’s negligent conduct was a proximate cause of their injury.
What is Comparative Negligence?
Comparative negligence is a tort principle applied to negligence actions which reduces a plaintiff’s recoverable damages by their own degree of negligence. As opposed to a pure contributory negligence theory, which bars a plaintiff from any recovery if they are even 1% at fault, comparative negligence offers a plaintiff reduced damages, even if they are partially at fault.
There are two types of comparative negligence in the United States:
Pure Comparative Negligence
Under pure comparative negligence, a plaintiff can claim damages for the 1% they are not at fault, even if they are 99% at fault. For example, a plaintiff who is 99% at fault would have their awarded damages reduced by 99%, but could still recover the 1%. About one-third of U.S. states follow this rule.
Modified Comparative Negligence
Modified comparative negligence is divided into two distinct rules – the 50 percent bar rule and the 51 percent bar rule.
Under the 50 percent bar rule, a plaintiff is barred from recovering damages if they are found 50% or more at fault. Simply put, to be awarded damages, the plaintiff’s negligence must be less than that of the other parties and their damages would be reduced by the degree of their own negligence.
Under the 51 percent bar rule, a plaintiff is barred from recovering damages if they are found 51% or more at fault. In other words, a plaintiff could seek compensation for damages if their negligence is less than or equal to that of the other parties and their damages would be reduced by the degree of their own negligence.
The majority of states follow one of the modified comparative negligence rules.
Comparative Negligence in Pennsylvania
42 Pa C.S.A. § 7102
Pennsylvania follows the 51 percent bar rule, a modified comparative negligence theory, as laid out in Section 7102 of the Pennsylvania General Assembly. It states, in pertinent part:
In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
42 Pa C.S.A. § 7102(a)
According to Pennsylvania’s Comparative Negligence Act, a plaintiff’s own negligence will not bar them from recovery unless they are more negligent than the defendants. To that point, the Pennsylvania Superior Court held that “recovery by an injured plaintiff will be precluded only where plaintiff’s negligence exceeds the combined negligence of all defendants.” Christiansen v. Silfies, 446 Pa.Super. 464, 472, 667 A.2d 396, 399 (Pa.Super. 1995) (citing Elder v. Orluck, 511 Pa. 402, 515 A.2d 517, 525 (1986)) (emphasis added).
The purpose of this act is to allow a plaintiff to recover damages as long as their negligence is equal to or less than that of the defendants:
The Pennsylvania Comparative Negligence Act replaced the harsh common law doctrine of ‘contributory negligence’ under which a plaintiff whose own negligence, however slight, contributed to the happening of the accident in a proximate way, was barred from recovery. A plaintiff who was found to be 1% causally negligent could not recover from a defendant who was 99% at fault…The comparative doctrine adopted by the legislature provides a more reasonable approach to issues of liability and insures that an injured plaintiff will recover against a negligent defendant or defendants even though plaintiff’s negligence contributed to the accident in an equal or lesser way. The injured victim’s recovery is reduced to the extent of his negligence.
Elder v. Orluck, 511 Pa. 402, 416, 515 A.2d 517, 524 (1986).
Pennsylvania law has made it abundantly clear that the burden of establishing comparative negligence rests on the defendant. Pascal v. Carter, 436 Pa.Super. 40, 647 A.2d 231, 233 (1994) (citing McCullough v. Monroeville Home Ass’n, Post 820, Inc., 270 Pa.Super. 428, 411 A.2d 794, 795 (1979)). Because contributory negligence is a defense, the defendant has the burden of proof and there is no burden on the plaintiff to prove that they were not contributorily negligent. Although evidence from the plaintiff’s case may establish contributory negligence without the production of any evidence by the defendant, the burden must remain on the defendant. Matteo v. Sharon Hill Lanes, Inc., 216 Pa.Super. 188, 263 A.2d 910 (1970). In demonstrating that the plaintiff was negligent, the defendant has the burden of showing that plaintiff’s conduct was unreasonable under the circumstances. Rose v. Annabi, 2007 PA Super 308, 934 A.2d 743, 746 (2007) (citing Argo v. Goodstein, 438 Pa. 468, 481, 265 A.2d 783, 789–790 (1970)).
Additionally, a plaintiff’s negligent conduct must be a proximate cause of his injury, if his conduct is to affect his recovery. Pascal v. Carter, 436 Pa.Super. 40, 43, 647 A.2d 231, 233 (1994) (citing Koelle v. Philadelphia Electric Co., 443 Pa. 35, 277 A.2d 350 (1971)). For negligent conduct to be a proximate cause of an injury, it must be a substantial factual cause of the injury for which damages are sought. Pascal, supra (citing Dornon v. Johnston, 421 Pa. 58, 60, 218 A.2d 808, 809 (1966)).
If there is some evidence of contributory negligence, the issue should be submitted to the jury. McCullough v. Monroeville Home Ass’n, Etc., 270 Pa.Super. 428, 411 A.2d 794, 795 (1979). Furthermore, if there is any evidence of contributory negligence, it would be an error not to charge the jury on the issue. Robinson v. City of Philadelphia, 329 Pa. Super. 139, 148, 478 A.2d 1, 5 (1984) (citing McCullough v. Monroeville Home Ass’n., Etc., 270 Pa.Super. 428, 431, 411 A.2d 794, 795–96 (1979) (Emphasis in original)). See also Hanlon v. Sorenson, 289 Pa.Super. 268, 433 A.2d 60 (1981).
When the Comparative Negligence Act does not apply because there was no destruction or damage to property, then the doctrine of contributory negligence bars recovery if the plaintiff’s negligence has contributed to his loss. Wescoat v. Nw. Sav. Ass’n, 378 Pa. Super. 295, 548 A.2d 619, 623 (1988).
The Fair Share Act
Pennsylvania’s comparative negligence rule goes hand-in-hand with the Fair Share Act, which was passed in 2001 and designed to limit the liability of multiple defendants who were found to be less than 60% at fault.
Specifically, the act states that “[a] defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages…where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.” 42 Pa.C.S. § 7102(a)(1)(3)(iii).
Pennsylvania courts have historically interpreted the Fair Share Act as abolishing joint and several liability in most cases and stating that defendants would generally only be liable for their fair share of liability. For example, under the Fair Share Act, if an action has three defendants, two who are 30% at fault each and one who is 40% at fault, each defendant would be responsible for their respective percentage of the damages awarded to the plaintiff.
However, in 2021, the Superior Court of Pennsylvania recently deviated from this widely accepted interpretation. In Spencer v. Johnson, the Superior Court ruled that the Fair Share Act only applies in cases where a plaintiff’s contributory negligence is at issue and the plain language of the statute indicates that the Fair Share Act only concerns matters where a plaintiff’s own negligence may have caused or contributed to an incident. Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). Essentially, the court ruled that there must be comparative negligence for the Fair Share Act to apply.
Following their decision in Spencer, the Superior Court made a similar decision in Snyder v. Hunt. The Superior Court explained that without finding that the plaintiff had contributed to her injury, the defendants were not shielded from liability from the Fair Share Act. The Court then instructed the trial court to apply joint and several liability to the defendants due to there being no proven allegation of comparative negligence and cited to Spencer. Synder v. Hunt, No. 851 EDA 2020, 2021 WL 5232425, at *6 (Pa. Super. Ct. Nov. 10, 2021).
Comparative negligence reduces a plaintiff’s recoverable damages by their own degree of negligence. There are two types of comparative negligence in this country, pure comparative negligence and modified comparative negligence. Most states follow a modified comparative negligence rule, like Pennsylvania, which has implemented the 51 percent bar rule. This rule precludes a plaintiff from recovering damages if they are found 51% or more at fault. In Pennsylvania, it is the defendant’s burden to establish comparative negligence and show that plaintiff’s negligent conduct was a proximate cause of their injury. When the Comparative Negligence Act does not apply, the doctrine of contributory negligence is followed.
The Superior Court has recently ruled that the Fair Share Act, which states that defendants who were found to be less than 60% at fault would generally only be liable for their fair share of liability, only applies in comparative negligence cases where a plaintiff is found partially at fault. The debate is still ongoing as to whether this ruling is binding on lower courts.