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Comparative Negligence

Comparative negligence is the legal (tort) concept for allocating liability for loss among those who caused the loss.


Comparative negligence is a legal concept within tort law.

In a tort action, an injured party (the plaintiff) generally seeks compensation from the party who caused the injury (the defendant).  As part of its defense, the defendant may argue that the plaintiff’s actions also contributed to the plaintiff’s injury and that the defendant should not have to compensate the plaintiff for the injuries caused by the plaintiff’s own carelessness.

State legislatures agree that a defendant should not have to compensate a plaintiff for the portion of the plaintiff’s injury that results from the plaintiff’s carelessness.

N.D.C.C. §32-03.2-02. Modified comparative fault. Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering…

This concept is referred to as comparative negligence, that is, in determining the amount that a defendant owes a plaintiff, the court must compare the extent to which the carelessness of the defendant and the carelessness of the plaintiff caused the plaintiff’s injury or damaged the plaintiff’s property.

Prior to the state legislatures adopting the comparative negligence standard, the law applied the concept of contributory negligence, wherein any negligence on the part of the plaintiff would relieve the defendant of all liability.  The comparative negligence statute attempts to strike a more equitable balance.  For example in North Dakota, the plaintiff is entitled to be compensated for the portion of damages caused by others as long as the plaintiff was less than 50% responsible.

The following excerpts are from Day v. General Motors Corporation, 345 N.W.2d 349 (N.D. 1984).

The Busch court referred to Winge v. Minnesota Transfer Railway Co., … wherein the court observed:

"While the statute speaks of a comparison of negligence, in application what is really compared, upon a consideration of all relevant facts and circumstances, is the relative contribution of each party's negligence to the damage in a causal sense."

The Busch court then concluded by stating:

[T]he comparative negligence statute becomes more than a comparative negligence or even a comparative fault statute; it becomes a comparative cause statute under which all independent and concurrent causes of an accident may be apportioned on a percentage basis.

In Busch, Lando Busch, the driver, was found to be fifteen percent negligent and Busch Construction, eighty-five percent. The damages awarded to Lando Busch were reduced by fifteen percent, which represented the percentage of cause attributed to him. However, this case is not directly on point because the "fifty percent or greater" provision of the comparative negligence statute was not required to be put into effect. We do not know what the court would have said if Lando Busch's negligence had been fifty percent or more.

In Bartels v. City of Williston, 276 N.W.2d 113 (N.D. 1979), we stated that the comparative negligence statute was enacted to eliminate the inequities under the former contributory negligence act which denied a recovery if the plaintiff was merely one percent contributorily negligent. Under N.D.C.C. § 9-10-07 (now see 32-03.2-02) the bar to recovery was shifted from one percent to fifty percent. In adopting the comparative negligence act, we do not believe the Legislature intentionally caused the pendulum to swing to the other extreme so as to create other inequities in some other areas not involved in the instant case. As the name suggests, the comparative negligence of all parties involved in the resulting injuries or damages is to be considered.

The following excerpts present another fact pattern to illustrate the application of the concept of comparative negligence. See Kreidt v. Burlington Northern Railroad, 2000 ND 150, 615 N.W.2d 153.

Timothy Kreidt suffered injuries arising out of an accident involving 26 vehicles and nine separate collisions on February 10, 1995. The collisions occurred in the westbound lane of I-94, west of Mandan, near the Crown Butte Exit. According to trial testimony, weather conditions deteriorated as motorists traveled west of Mandan, resulting in almost zero visibility.

Some vehicles, including the one carrying Mary and Robert Steffan, stopped along the shoulder of the highway due to the poor visibility. A car driven by Christine Koltes stopped in the driving lane of traffic next to some cars also stopped on the shoulder. Shortly after stopping, Koltes was "rear-ended." Soon after, Marvin Sutheimer, driving a BNSF truck in the driving lane, came upon a row of cars stopped on the shoulder and the row of cars now stopped in the driving lane. Sutheimer turned into the passing lane to avoid the cars in the driving lane. Sutheimer stopped in the passing lane next to Koltes.

Several collisions ensued. At some point Kreidt approached the area where the three rows of cars were stopped. Kreidt's vehicle was hit from behind and he suffered serious physical injuries. Testimony at trial conflicted as to whether Kreidt rear-ended someone before or after he was rear-ended.

Kreidt sued Koltes and BNSF, alleging their negligence in blocking the interstate proximately caused his injuries. A jury returned a verdict assigning 45 percent of the negligence to BNSF, 45 percent to Koltes and 10 percent to Kreidt.



Comparative negligence is a legal concept within tort law that directs the court to 1) determine the portion or percent of damages or injuries that are due to each person's actions and 2) to allocate the financial loss among those persons in proportion to each person's responsibility.

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