Negligence

The most common tort--and the one most difficult to define--is negligence. Negligence is defined as the failure to use reasonable due care to avoid a foreseeable harm to a person, place or thing. If you are negligent and your negligence causes injury to another person to whom you have a "duty of care," you may be liable to pay any damages resulting from the injury caused by your carelessness. A person may be considered "careless" or "negligent" if they do not use the kind of "due care" that is appropriate to the particular situation in question. For example, a higher level of care is called for if you are pouring boiling coffee into a friend’s glass over his lap than is called for if you are pouring cold lemonade over the kitchen sink. Generally, the law requires that individuals exercise the same kind of "due care" that a reasonable person would exercise under the same circumstances. This is called the "reasonable man" or "reasonable person" standard.

Some common negligence claims involve:

  • slip and fall accidents (a person slips, falls and is injured on someone else's property)
  • alcoholic beverage liability (a provider of alcohol--either a social host or bartender--serves too many drinks to an underage or noticeably intoxicated individual who is then involved in an accident that causes injury to a third person)
  • motor vehicle accidents (accidents caused by reckless or careless driving)
  • medical malpractice (when a doctor doesn't maintain the level of skill and knowledge commonly exercised by other doctors)

Types of Negligence

When a lawsuit is brought for damages caused by an accident, the judge or jury must decide who caused the accident, since more than one person may have been negligent, including the person who is bringing the lawsuit. Once the amount or percentage of negligence has been determined for each person, damages are awarded as determined by what system of fault the state follows. There are four predominant systems used throughout the United States: "contributory negligence," "pure comparative fault," and "modified comparative fault," which has two different modification options. There are also a handful of states that have their own unique systems of determining damage awards.

Oklahoma follows the doctrine of 50 percent fault.

Contributory negligence

Contributory negligence bars any recovery by the person bringing the lawsuit if they were responsible for the accident in any way. Thus, if the judge or jury decides the person who is bringing the lawsuit is even one (1) percent at fault for causing his own injuries, the person bringing the lawsuit may not recover any damages.

Pure Comparative Negligence

In a pure comparative negligence system, the judge or jury decides how much fault should be allocated to each person responsible for an accident, and then apportions the amount of damages accordingly. For example, if a person is found to be 40 percent at fault for causing his own injuries, then the other party or parties responsible will only have to pay 60 percent of the plaintiff's damages. This is based on the percentage of fault assigned to each of them.

Modified Comparative Fault

There are also states that use a modified comparative fault system. Just like a pure comparative negligence system, a judge or jury decides how much fault should be allocated to each person responsible for an accident and apportions the amount of damages accordingly. But unlike a pure comparative negligence system, a limit on the percentage of fault of the person bringing the lawsuit is used. There are two different limits used: the 50 percent fault rule, and the 51 percent fault rule.

50 Percent Fault Rule

If the 50 percent fault rule is used, the person bringing the lawsuit cannot recover if he is 50 percent or more at fault, but if he is 49 percent or less at fault, he can recover, though his recovery is reduced by his degree of fault. Thus, if a person is found to be 50 percent at fault, he recovers nothing, but if a person is found to be 49 percent at fault he can recover 51 percent of his damages.

51 Percent Fault Rule

If the 51 percent fault rule is used, the person bringing the lawsuit cannot recover if he is 51 percent or more at fault. This follows the principle that a plaintiff who is more negligent than a defendant should not be able to recover anything. Here, if the person bringing the lawsuit is 50 percent at fault, he can recover 50 percent of his damages, but he cannot recover anything if he is found to be 51 percent or more at fault.