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Nevada’s Modified Comparative Negligence Doctrine

Posted by: on Sat, Nov 10, 2012

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A. Nevada’s Modified Comparative Negligence Doctrine

Nevada has adopted the doctrine of modified comparative negligence. Nev. Rev. Stat. Ann. § 41.141 (Michie 1996), quoted below. Under this doctrine, a plaintiff’s claim for personal injuries is barred if his or her negligence or fault exceeds the combined negligence of all the defendants. Otherwise, the claimant’s recovery is diminished or reduced in proportion to his degree of negligence or percentage of fault. Id. NRS 41.141 provides as follows:

When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants.

1. In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or his decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.

When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants.

1. In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or his decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.

2. In those cases, the judge shall instruct the jury that:

(a) The plaintiff may not recover if his comparative negligence or that of his decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.

(b) If the jury determines the plaintiff is entitled to recover, it shall return:

(1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to his comparative negligence; and

(2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.

3. If a defendant in such an action settles with the plaintiff before the entry of judgment, the comparative negligence of that defendant and the amount of the settlement must not thereafter be admitted into evidence nor considered by the jury. The judge shall deduct the amount of the settlement from the net sum otherwise recoverable by the plaintiff pursuant to the general and special verdicts.

4. Where recovery is allowed against more than one defendant in such an action, except as otherwise provided in subsection 5, each defendant is severally liable to the plaintiff only for that portion of the judgment which represents the percentage of negligence attributable to him.

5. This section does not affect the joint and several liability, if any, of the defendants in an action based upon:

(a) Strict liability;

(b) An intentional tort;

(c) The emission, disposal or spillage of a toxic or hazardous substance;

(d) The concerted acts of the defendants; or

(e) An injury to any person or property resulting from a product which is manufactured, distributed, sold or used in this state.

6. As used in this section:

(a) “Concerted acts of the defendants” does not include negligent acts committed by providers of health care while working together to provide treatment to a patient.

(b) “Provider of health care” has the meaning ascribed to it in NRS 629.031.

Last modified: February 28, 2006 (emphasis added.)

Under N.R.S. 41.141, the plaintiff may recover so long as the plaintiff’s negligence is not greater than the negligence of the defendant. Of the thirty-three states following a modified comparative fault system, twenty-one (21) states follow a 51% rule. Nevada is one of these. In states following a modified comparative fault – 51% rule, like Nevada, an injured party can only recover if it is determined that his or her fault does not reach 51%. If the injured party was 50% or less at fault, he or she may still recover damages. In other words, a plaintiff may have caused half of the accident and still recover damages from the court, but if it is found that the plaintiff’s fault was responsible for more than half of the accident, then that plaintiff is barred from receiving any damages determined by the court. Here, as in a pure comparative negligence state, a plaintiff’s recovery is reduced by the degree of his or her fault. Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming follow the modified comparative fault–51% rule.

This means that an injured party can only recover if it is determined that his or her fault does not reach 51%. Under NRS 41.141, a plaintiff who is 50% at fault is not entirely barred from recovery, but his or her damages are reduced by his own percentage of negligence. See Moyer v. United States, 593 F. Supp. 145 (D.Nev.1984). In other words, a plaintiff may have caused half of the accident and still recover damages from the court, but if it is found that the plaintiff’s fault was responsible for more than half of the accident, that plaintiff is barred from receiving any damages determined by the court. Some observers have noted that Nevada juries rarely find Plaintiffs to be more than 50% negligent and therefore almost never completely or totally bar their claims.

An example may help. In a two-party auto accident, a defendant whose negligence constituted 50% of the total causal negligence in connection therewith, is liable to the plaintiff for just 50% of her damages. See, State Farm Auto Ins. Co. v. Commissioner of Insurance, 114 Nev. 535, 542 (1998). Consequently, in a personal injury negligence-based claim, defendants can use Nevada’s Modified Comparative Negligence Theory as a partial and/or complete defense if there is sufficient evidence to support a finding that the Plaintiff’s alleged injuries were caused in whole or in part o by the Plaintiff’s own contributory negligence.

B. Application of Comparative Negligence Doctrine to Legal Malpractice Cases

A review of cases from other jurisdictions indicates that, of the thirty-one (31) state appellate courts which have dealt with this issue (contributory negligence of clients in legal malpractice cases), the overwhelming majority have recognized that a client’s recovery for legal malpractice can be either entirely foreclosed, or proportionally diminished, as the result of his or her own negligence, depending upon the states comparative negligence rules.

In eighteen (18) states, principles of comparative negligence are applied to apportion relative percentages of fault between a client and an attorney in legal malpractice actions based on negligence principles.

In an additional twelve (12) states, appellate courts have ruled that the contributory negligence of the client is an affirmative defense to an action for legal malpractice based on negligence. However, of those twelve (12) states.

Eight (8) of those 12 states have modified the doctrine of contributory negligence, generally, and implemented a system of comparative negligence, either judicially or statutorily. Thus, in those eight (8) states the contributory negligence of a plaintiff is not an absolute bar to recovery in a legal malpractice case. Presumably Nevada would fall into this category, and a legal malpractice case would be treated similarly with other types of negligence.

Consequently, only four (4) states, Alabama, Maryland, North Carolina and Virginia, still cling to the largely repudiated notion that the contributory negligence of a plaintiff, no matter how slender, is a complete bar to monetary recovery for loss in a negligence action. See 57A Am.Jur 2d § 856, n.62. Hence, in those four (4) states, it would appear that a plaintiff in a legal malpractice action based on negligence, who was determined by a jury to have even been the slightest bit negligent, would still be barred from recovery.

  • 1) For a summary of various states’ laws on contributory or comparative negligence in the legal malpractice arena, see Gorski v. Smith, 812 A.2d 683 at footnotes 4 and 5 (Penn. 2002)
  • The ABA Section of Litigation’s Professional Liability Committee publishes a Fifty State Survey of Legal Malpractice Law. The surveys have generally been updated within the last two years, and range from five to more 50 pages in length. Most expressly cover the concept of comparative fault/contributory negligence.

by G. Mark Albright

About the Authors: G. Mark Albright is a Partner with the law firm of Albright, Stoddard, Warnick & Albright, an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on litigation in Nevada’s state and federal courts.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.