4-3 Comparative Negligence

JurisdictionUnited 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 resulting lawsuit against the trustee was unsuccessful, with the court ruling that Solomon's own negligence caused the loss. In the malpractice action, the appellate court held that it was unable to affirm the summary judgment in favor of the attorneys because genuine issues of material fact existed as to whether the damages were caused by the attorneys' advice or the bankruptcy trustee's acts.56

In Tarleton v. Arnstein & Lehr,57 the Fourth District Court of Appeal held: "A client cannot be found to be comparatively negligent for relying on an attorney's erroneous legal advice or for failing to correct errors of the attorney which involve the exercise of professional expertise."58 As a result, it ruled that the trial court erred in failing to issue a directed verdict in favor of the client on the issue of comparative negligence.59

The law firm had argued that the client...

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