4-3 Comparative Negligence

• Jurisdiction: United States

4-3 Comparative Negligence

A comparative negligence defense is viable in a legal malpractice case if it can be shown that the client in some way contributed to his or her damages.

A "double comparative negligence" situation was involved in Michael Kovach, P.A. v. Pearce.⁵² The underlying proceeding involved an automobile accident. Pearce was found to have negligently operated his vehicle, after which he sued his trial counsel claiming that Todter, the other driver, also was at fault and that Kovach (Pearce's lawyer) had been negligent in not proving Todter's comparative negligence.

Accordingly, it was necessary for the jury in the malpractice action to retry the underlying case to determine Todter's negligence, if any, and Pearce's negligence, if any, and, if both were negligent, to determine how much of the $600,000 verdict was properly chargeable to Pearce's negligence in injuring Todter, how much was chargeable to Todter's own negligence, and how much resulted from Kovach's negligent failure to properly defend.

The jury found against Kovach, but its verdict was overturned on appeal because of an error in the verdict form.⁵³ Instead of providing the jury with the opportunity to apportion negligence between Pearce and Kovach as to the negligent defense in the injury case, and Todter and Pearce in the injury case, the form limited the jury to apportioning fault between Pearce and Kovach in the malpractice action.⁵⁴

A comparative negligence defense also was raised in Solomon v. Meyer.⁵⁵ Solomon paid a bankruptcy trustee for various assets, but the trustee failed to deliver them. Solomon's...