Comparative Negligence
| Publication year | 1972 |
| Pages | 1 |
1972, August, Pg. 1. Comparative Negligence
Comparative negligence is a fault concept that apportions liability for damages in accordance with the contribution of each tort-feasor causing the injury or damages. In its simplest terms, the doctrine holds that every person is responsible to another to the extent he caused the injury or damage sustained. Where both parties are negligent, the doctrine abrogates the common law concept of contributory negligence, thus relieving the parties of an all-or-nothing situation.
In apportioning negligence between parties, the whole conduct of the parties should be considered, regardless of the nature of the parties' acts or omissions. Both active and passive negligence should be evaluated. Active negligence is contributory negligence which by its nature is the basis of liability and could be a bar to recovery. Passive negligence is negligence by omission or commission which could never be the basis of liability, but which increases the damage or injury sustained.
Determination of the percentage of negligence attributable to each party cannot be equated simply to the kind, the character, or the number of respects of negligence. For example, it cannot be presumed that there is to be attributed the same percentage of negligence to each party merely because each is guilty of the same category of negligence.(fn1) The quality of negligence does not determine its quantity.(fn2) Similarly, a finding that the plaintiff is guilty of negligence in two respects and the defendant is guilty of negligence in only one respect does not establish that the plaintiff is more negligent than the defendant.(fn3)
To place the Colorado comparative negligence statute in proper perspective, a brief examination of the various theories applying to recovery and liability in the states which have enacted comparative negligence statutes is in order. The theories differ primarily in the amount of contributory negligence necessary to defeat recovery. Under the pure form of comparative negligence in Mississippi, it is theoretically possible for a person who is 99 per cent negligent to recover 1 per cent of his damage. In New Hampshire, a plaintiff may recover proportionate damage if his negligence is not greater than that of the defendant. In Nebraska, recovery may be had in diminished proportion if the plaintiff's negligence is slight and the defendant's negligence is gross. In Colorado, and
The Colorado statute on comparative negligence (C.R.S. 41-2-14 (1971)) may be found on page 496 of the 1971 Session Laws. Section 1 of the statute provides that "[c] ontributory negligence shall not bar recovery in any action... if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made." Section 2 of the...
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