How are tort damages assessed?

The comparative negligence rule says that an injured party may recover damages in tort actions even if the blame was shared, though an injured person’s recovery may be reduced in proportion to the degree that his/her own negligence (or other fault) was responsible for his injury. In some states, recovery is barred if the injured party’s responsibility exceeds a specific degree, such as 50 percent.

In contrast, the contributory negligence approach bars recovery by an injured party who did not exercise reasonable care and contributed to the harm he/she suffered. Nearly all states have some form of comparative negligence method, ranging from those with the pure type in which a plaintiff may recover damages regardless of the amount of negligence, to those with tighter standards (50 or 49 percent negligence). In a few states, any degree of contributory negligence will totally block recovery.

On the other hand, joint and several liability is premised on the idea that defendants are in the best position to apportion damages amongst themselves. Joint and several liability is the rule that each party who contributes to causing the injury may be held individually liable for the total damages, meaning if someone is awarded $100,000 in a negligence lawsuit, then he/she can collect it from any of the defendants, regardless of who was most at fault. In fact, if one defendant has no money, the other defendant may be required to pay the full amount, even if that defendant was only minimally responsible. While most states used to follow the joint and several liability rule, the large majority of states have limited it or abolished it, opting to apportion damages by percentage of fault.