What is Comparative Negligence?

Washington law, for many years, followed a strict contributory negligence rule that barred the plaintiff from recovering anything if contributory negligence to any degree was proven. Our law changed to one of comparative negligence as set out in RCW 4.22.005 “Effect of Contributory Fault” which provides:

“In an action based on fault seeking to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery…”

The Washington Pattern Jury Instruction (WPI) tells the jury:

“Contributory negligence is negligence on the part of the person claiming injury or damage that is a proximate cause of the injury or damage claim.”

WPI 11.07 tells the jury that: “If you find contributory negligence, you must determine the degree of negligence, expressed as a percentage, attributable to the person claiming injury or damage. The court will furnish you a special verdict form for this purpose. Your answers to the questions in the special verdict form will furnish the basis by which the court will apportion damages, if any.”


Where there is a preponderance of evidence of contributory negligence on the part of the plaintiff, the juries job involves:


1.Applying a standard of ordinary care to the conduct of the plaintiff in determining whether or not the plaintiff was in fact negligent.
2.Determining whether contributory negligence, where it exists, was a proximate cause of the plaintiff’s own injuries
3.Comparing the negligence of the defendant to that of the plaintiff and expressing the negligence of each in percentages in assessing 100% of the total negligence by both (as required by RCW 4.22.005)


The Legal Consequence of Finding Contributory Negligence


WPI 11.07 tells the jury after assessing whether there is negligence on the part of the plaintiff they are to determine the percentage on the verdict form. The only other thing this instruction tells them about the effect of doing so is: your answers to God questions in the special verdict form will furnish the basis by which the court will apportion damages if any.” There is no explicit statement in the instructions given to the jury which makes it clear to them that the ideas damages will be reduced by the percentage of contributory negligence they determined should be assessed against plaintiff. However, it seems obvious that if it is not made clear to the jury any damages they provide for the plaintiff will be reduced via the percentage of contributory negligence, the jury is likely to intuitively reduce the amount they fill in for damages not knowing the court will do so.


To avoid this likely error a simple solution would be to tell the jury they are to fill in the blank for the full amount of damages, if any, and that amount will be reduced by the court using the percentage of contributory negligence that they might find existed. There can’t be any prejudice to the defendant and clarify this, plus the instruction already tells the jury that the court: “will apportion damages” using the percentage they appraise. The plaintiff should be allowed to clarify this matter or court should simply add a sentence or two in the preliminary instruction before jury selection explaining the situation. . Nevertheless, this is a potential issue that needs to be clarified before jury selection and opening statement with the court. z


Plaintiff’s Approach to the Contributory negligence Issue


I believe that a jury is a group of people who bring with them their own past significant life experiences as well as their value beliefs that they apply to the facts and evidence as they understand them. They filter the facts and evidence presented to them through the lens of their pre-existing unconscious viewpoints.

As a result a trial is, at its essence, of impressions made and not a test of logical thinking. In this process jurors’ participants for their impressions. They are not fully confident about who to trust in the trial proceedings because they perceive that everyone has a different self-interest. While they see the judge in a more impartial light then the attorney’s parties they do not therefore follow the judge’s lead in every regard.

In forming their impression of the case, jurors in general are looking for someone in the court room who appears to them to have more credibility than other participants.

In this contest for credibility and trust from the jury, the most powerful tool is authenticity of the person and total truthfulness in presentation. We believe people we trust. We trust people who are truthful and open. We are distrustful of people who are guarded and unwilling to acknowledge faults in themselves or their client’s case.

The first question for the plaintiff’s attorney is whether or not there is sufficient evidence that a jury is likely to find some contributory negligence. If not, one must acknowledge the issue exists and proceed to defend the client against the claim. But, if there is a likelihood of a jury finding a percentage of fault, it must be dealt with honestly.

If the negligence is going to be conceded by plaintiff that has to in jury selection, be discussed in opening statement and covered in witness examination by plaintiff. The first and most important rule of a great plaintiff’s attorney is to tell the truth and be an honest person.

Jury Selection

In the presentation of the issue of comparative negligence here are the important factors to keep in mind. Each of these should be discussed in jury selection through appropriate questioning and in opening statement.

1.The defense claims the plaintiff was negligent
2.Only negligence that is a proximate cause of plaintiff’s injuries is to be considered
3.Defendant has the burden of proving this contributory negligence and proximate cause.
4.The jury must compare any negligence of the plaintiff to any negligence of the defendant
5.The jury must determine the percentage of negligence each contributed to the total fault
6.The jury is to determine full damages due the plaintiff irrespective of any negligence on the part of plaintiff.
7.The court will use the percentages of negligence in apportioning damages.

As noted, before, we know that the last point means the total damages to a plaintiff will be reduced by the percentage of contributory negligence the jury assigns. However, whether that should be divulged is something to be taken up with the judge before jury selection to avoid potential error. We know that any damages determined to be due to the plaintiff by the jury will be reduced by the percentage the jury says was plaintiffs own contribution of fault to their injuries. This is obviously an extremely significant factor. Yet there is no explicit instruction to the jury which advises them that this is the case. While it seems elementary that jurors should know all of the consequences of their decisions to help guide them in arriving at a verdict, defendants have objected to disclosing to the jury the significance of the percentages they are asked to compute. It makes no sense to conceal this from the jury, but disclosure to the jury could be a legal issue.

The statement of the case usually advises the jury the defendant claims plaintiff was negligent. That is a matter you are entitled to explore with the jury as to their attitudes. For example, in a malpractice case one could say to the jury panel:

Q.  Judge Smith has told you that defendant denies he was negligent but in addition claims Sally Johnson, the plaintiff, was following too close and was negligent herself.

     Q. As the judge told you, the defendant has the burden of proving this claim. How do you   

  feel about the law that says defendant has to prove a claim like that?

Q.   You will be given the job of comparing the conduct of defendant to that of the plaintiff in evaluating the claim plaintiff was negligent causing her own injuries. How do you feel about making the comparison?

Q.  If you do find both defendant and plaintiff were negligent you will have to decide the percentage of negligence by each. What is your reaction to that responsibility?

Q.What if I were to tell you that George will testify, he can understand why a jury might find him somewhat at fault? He doesn’t think he was, but he accepts that he might be 4 to 5% at fault in some way. What’s your reaction to that?

Examination of Witnesses

On direct, point out to the client the jury will be assessed to assess their conduct for negligence and if it exists assign a percentage by comparing to defendant’s conduct. Ask whether client feels they were negligent in some way. It’s OK to concede if done artfully: As an example, perhaps: “I can see now that it might have been smarter for me to have…I can understand that someone might find me somewhat at fault, but I feel like I did the best I could at the time.”

On cross, as the defendant if they think they were negligent to any percentage at all. Use the jury instructions for this. Would they have done anything different knowing what happened? Do they plan to change their practice in the future?

Trial Exhibits

See suggested exhibit regarding comparative negligence. Use the jury instructions as well in opening, examination and argument.


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