Contributory and comparative negligence are two distinct common-law tort principles in Nevada. They apportion monetary damages in personal injury cases where the plaintiff's actions contributed to the injuries. Contributory negligence is an affirmative defense that prevents the plaintiff from recovering damages if they are responsible for any cause of the injury. Under comparative negligence, however, damages will be apportioned based on each party's percentage of fault.

This article explains the differences between contributory and comparative negligence. In particular, this blog discusses Nevada Revised Statutes Section 41.141 (NRS). It explains how Nevada's revised comparative negligence 51% bar rule affects accident victims seeking compensation.

Establishing the Elements of Negligence in Personal Injury Claims

Nevada Revised Statutes (NRS) 193.018 defines criminal negligence, but there is no definition of civil negligence in Nevada. In a plaintiff's claim of negligence, the plaintiff must establish four elements of a civil case by a preponderance of the evidence. Under Nevada tort law, to establish a claim, you must prove that the defendant failed to meet their duty of care to you and that they are liable for your subsequent losses.

Determining the Duty of Care

In a civil case, you need to prove that the defendant had a legal duty of care for you.

For example:

  1. When driving, in normal traffic conditions, all motorists have this legal obligation as a result of the statutory definition of traffic duties in Nevada, including the fundamental speed law in NRS 484B.600. They are required to keep a proper lookout, to abide by traffic signs and signals, and to drive their vehicles safely.
  2. Property owners and commercial businesses also have a common-law duty to keep their property safe for you.
  3. Where there is a relationship between you and another party, for example, a doctor-patient relationship, the standard of care is heightened, as required by the statutory definition in NRS 41A.015 of the standard of care in medical malpractice cases.

In Nevada, a legal duty is not a question of fact for the jury but a question of law for the court. Even if you suffer severe physical injuries, if the court finds no duty of care was owed to you by the defendant under the circumstances, your civil claim will not be permitted to proceed.

So the first crucial point of your personal injury case in this state today is to determine the precise legal origin of the defendant's duty of care.

Identifying a Breach of Duty

Breach of duty occurs when a party fails to act in accordance with the standard of care for the situation. The juries determine the defendant's liability by making a comparison between a hypothetical reasonable and prudent person.

For example:

  1. Drivers who text while operating a vehicle are violating this standard and violating NRS 484B.165. The statute bans the use of manual typing or reading of non-voice data.
  2. A grocery store owner who does not mop a wet floor for several hours does not act reasonably.

To establish that the defendant's actions do not meet the required legal standard, you should present credible evidence, including eyewitness statements, surveillance video, or police reports. 

In addition, Nevada law allows for a breach to be established by the doctrine of negligence per se if the defendant's conduct breached a public safety statute, such as NRS 484B.307, which regulates traffic-control signals, and the violation resulted in your injuries.

If a statutory violation is proven, the law presumes a breach of duty, which then becomes the defense's burden to prove. Documenting a breach is difficult and will require careful documentation so that your lawyer can establish exactly how the defendant failed to meet this duty of care.

Establishing Causation and Damages

To win your case, you have to prove breach of duty and causation, in addition to actual damages. Under Nevada common law, there are two elements to establishing causation:

  1. Cause, in fact
  2. Proximate cause

This connection must be foreseeable. That means a reasonable person would have foreseen that such negligence could cause harm. Lastly, you will establish that you actually incurred actual and quantifiable damages as a result of the accident. 

These all combine to make the foundation of your recovery. If you cannot prove that the defendant's violation caused your specific monetary damages, the court will dismiss your case. This is why you should obtain expert medical testimony and detailed financial records to establish causation and prove your damages to achieve a positive outcome in court.

Understanding Contributory Negligence and the Absolute Bar to Recovery

In the past, common-law jurisdictions settled cases of shared liability under a doctrine of strict contributory negligence. In this harsh system, you have no chance of ever getting any financial compensation if you were in any way, no matter how slight, responsible for the accident. This legal requirement is "all-or-nothing" and does not permit any recovery when the plaintiff is at fault for even 1% of the accident.

For example, if you are jaywalking across a street and are hit by a drunk driver, a court would rule against the claim because you did not use the crosswalk. Because of these extreme consequences, Nevada has abandoned this doctrine and switched to the “modified” comparative negligence doctrine. The highly restrictive contributory negligence standard is still in effect in only five jurisdictions in the United States:

  • Alabama
  • Maryland
  • North Carolina
  • Virginia
  • Washington, D.C.

Defense attorneys could take full advantage of this standard if your accident takes place in one of these states. They will find any evidence of your minor mistakes, if you were just a little over the speed limit or did not use your turn signal, and that will be a complete defense to your claim under local state law.

By contrast, the common law doctrine has been specifically rejected in Nevada by the enactment of NRS 41.141. The progressive nature of Nevada's legal system allows you to make a claim, even if you are partly at fault, which is significantly fairer and more equitable. In Nevada, however, insurance companies will try to do everything they can to take advantage of any shared fault to minimize your settlement or even avoid paying out, so you must be vigilant.

Differences Between the Types of Comparative Negligence Systems

Comparative negligence is a much fairer way of assigning financial losses and allocating fault among all parties. This doctrine modifies a victim's compensation based on their degree of fault and exists in two forms.

  1. Pure Comparative Negligence

The pure comparative negligence doctrine allows you to recover even if you are partially responsible for the accident. This law does not impose any threshold for recovery but requires that the plaintiff be 99% at fault to be entitled to damages. However, the court deducts your percentage of fault directly from your final monetary award.

In a multi-car accident, for instance, if you are 90% at fault for the accident due to extensive injuries, you will receive only 90% of your final financial recovery. You would only receive 10% of any damages awarded, so you need to consider whether it makes financial sense to pursue a case if you are a high percentage at fault.

In addition, the other party could also sue you to recover 90% of their damages, which could result in counterclaims that could diminish the net financial recovery you receive. The downside of this is that you can recover damages at a high fault percentage, but you must be ready for stiff counterclaims. In court, you will need the guidance of an experienced lawyer to avoid being defeated in your recovery by these reciprocal claims.

  1. Modified Comparative Negligence

Unlike in pure systems, modified comparative negligence laws impose a strict legal threshold that limits your ability to collect damages.

In this case, you could only recover compensation if your share of the fault is less than a certain percentage, typically 50% or 51%. Once your share of responsibility exceeds this legal limit, you are barred from receiving any compensation. Under the 51% rule, if you live in a state that follows it, then if you are 50% responsible, you cannot collect any damages. 

The fifty-one-percent bar rule, however, allows damages to be recovered if the fault percentage is exactly fifty percent. Still, damages are half the amount, while a fault of 51% or higher would result in no recovery at all.

To be successful under a modified comparative standard, you have to ensure your assigned fault remains below this statutory threshold, which is not the same as a "pure" system environment. This system allows highly negligent plaintiffs to avoid payment of sums and provides a compromise between strict contributory negligence rules and pure comparative fault systems.

So in a fifty-percent state, if you are equally responsible, you receive nothing, but in a fifty-one-percent state, you could receive half your damages. This means your shared liability claim could be argued in court based on your state's threshold. To keep your fault under this critical threshold today, you should work with an experienced personal injury lawyer.

Understanding Nevada's 51% Modified Comparative Negligence Statute (NRS 41.141)

Nevada has a modified comparative negligence system as outlined in NRS 41.141. Specifically, NRS 41.141(1) provides that the plaintiff's negligence shall not preclude recovery in an action for death, personal injury, or property damage if the plaintiff's negligence is not more than the negligence or gross negligence of the party or parties against whom recovery is sought.

This law requires a 51% bar rule, which means that if you are assigned 50% or less of the fault, you can receive damages. This means that you can recover compensation if you are fifty percent or less responsible. However, you will receive nothing if you are determined to be fifty-one percent or more responsible.

In accordance with the requirements of NRS 41.141(2), the jury and/or the court must proceed in a particular order to determine liability and damages, including:

  • Determining the plaintiff's total compensatory damage
  • Allocating blame percentages to all parties concerned
  • Lowering the total amount of financial recovery for the plaintiff's fault percentage
  • Completely denying recovery if the plaintiff's fault is 51% or greater

For example, if you are in a car accident and your total damages are $100,000 due to property damage and medical expenses, the jury will consider this calculation. If the jury decides that you were 30% at fault because you did not use a turn signal, your recovery drops to 70%. 

Under the clear directive of NRS 41.141(1), however, if the jury finds that you were speeding too fast (51% or more), you are legally prohibited from receiving any compensation. It is therefore important to keep your assigned fault below this statutory limit to receive the critical funds needed to cover your treatment after the accident and other personal costs incurred due to your severe injuries. 

The key to your recovery is to prove the other driver was at least 50% at fault for the accident, which is why you should preserve evidence as soon as possible to secure a positive outcome in your civil case in Nevada today.

How Comparative Negligence Applies to Various Injury Cases in Nevada

Nevada's modified comparative negligence doctrine does not only apply to simple accidents. Rather, this statutory fault assignment applies to several different types of personal injury claims, and courts and insurance companies must consider the individual actions of all involved in these ongoing civil litigation cases in Nevada.

Understanding Fault Allocation in Auto Accidents

When it comes to auto-accident cases, determining who is at fault is not always straightforward, as several factors contribute to an accident. Insurance adjusters often rely on the basic speed law provisions (NRS 484B.600) and the following closely-provisioned provisions (NRS 484B.127) to apportion liability to an injured plaintiff.

Nevada's modified comparative negligence system will focus on your driving conduct and the defendant's actions. When a driver is running slightly too fast, and another driver turns left directly in front of you, generally, both drivers will be held jointly liable. While the other driver violates their duty to yield, your speed is also a contributing cause that will hurt your final compensation. 

If you can establish that the defendant was the "main cause" of the accident, you can safeguard your claim from being completely denied under the statutory threshold. Car accidents happen quickly, and the physical evidence at the scene is usually the best indicator of what occurred. Your attorney can obtain this evidence right away and build a rock-solid case that ensures your liability percentage is kept under the critical 51% threshold and you obtain the funds you need to pay for your vehicle repair and painful physical injuries.

Premise Liability Claims and Property Owner Negligence

Shared fault is common in premises liability cases and can be a source of conflict if you are injured on someone else's property. The Nevada Supreme Court previously abolished rigid common-law classifications of invitees and licensees in Moody v. Manny’s Auto Repair, 871 P.2d 935 (Nev. 1994). The court replaced the classification with a uniform duty of reasonable care. Foster v. Costco Wholesale Corp., 128 Nev. 713, 291 P.3d 150 (2012) further expanded victim rights. The court ruled that an "open and obvious" danger does not automatically extinguish a landowner's duty, meaning that visual hazards are now treated as matters of comparative fault rather than as an automatic bar to a lawsuit.

If, however, you slip and fall on a wet floor, you can expect the defense to regularly claim that you were careless and caused your own accident. They might say that you were distracted by a cell phone or did not see the hazard signs. NRS 41.141 says the jury will evaluate your actions against those of a reasonable visitor, and the percentage of fault you are given will reduce the amount of compensation you receive.

By contrast, recovery will be barred if the finding is fifty-one percent fault. While there is a legal duty for the property owner to inspect and maintain the property, if you did not look where you walked, your recovery may be diminished. Defense attorneys will try to find anything that could have been a warning sign or your footwear to get the blame off you.

You must show that the hazard was not readily avoidable and that you were being reasonable in the situation if you want to keep your right to compensation. To be presented in court today is the need for detailed photographs of the scene and a detailed analysis of the property owner's maintenance logs and sweep sheets.

Product Liability Lawsuits and Strict Liability

Manufacturers and distributors are strictly liable for injuries resulting from manufacturing or design defects, or from failure to provide adequate warning labels, in product liability cases. Strict liability is a separate legal principle treated by the Supreme Court of Nevada in Allison v. Merck Co., Inc., 110 Nev. 762, 878 P.2d 948 (1994). The court ruled that the plaintiff need not prove that the manufacturer was negligent, only that the product was defective and caused the injury. 

However, if you contributed to your injuries, the principles of comparative negligence still apply. If the defendant can show that you unexpectedly used the product or that you took the risk of injury, then your damages will be reduced or eliminated under Nevada common law.

If a product is defective, but you did not read the warnings or change the product before using it, your winnings could be reduced. Defense lawyers will try to find any evidence that you were told that you were in danger, meaning that you assumed the risk. To establish a strong product liability claim, you have to prove that the defect itself was the direct cause of your injury and not some other factor. This will allow you to receive the compensation you deserve and help the defense avoid assigning blame to you.

How Liability is Divided Among Multiple At-Fault Parties in Nevada

If there are several defendants in an accident, it can be complicated to decide who is liable. In a typical negligence case, Nevada has a “several liability” doctrine, meaning that each defendant must be held liable for his or her share of responsibility under the strict statutory requirement in NRS 41.141(5). This statute makes it clear that in such instances, joint and several liability is not allowed, so that you can't force one defendant to pay for another defendant who is bankrupt or uninsured.

NRS 41.141(5) does have certain statutory exceptions. However, NRS 41.141(5) provides specific statutory exceptions where joint and several liability still applies, including:

  • Strict liability claims under NRS 41.141(5)(a)
  • Toxic torts under NRS 41.141(5)(b)
  • Concerted acts under NRS 41.141(5)(d)

If you are held liable against multiple parties, you could obtain different forms of damages pursuant to Nevada civil procedure, including:

  • Economic damages, such as medical costs, lost income, and property damage
  • Non-economic damages, such as pain, emotional distress, loss of life enjoyment
  • Damages for wrongful conduct, such as malice damages

In an effort to recover these, insurance companies go to great lengths to pit the defendants against one another, blaming each other for as much as possible to limit their own liability. 

Consult a Personal Injury Lawyer Near Me

When the dispute involves shared fault, ensure prompt intervention from a personal injury attorney who knows how to counter aggressive blame-shifting tactics. Hiring a lawyer quickly will help safeguard your rights, keep the important evidence, and prevent insurance adjusters from overcompensating you for the amount of fault you have.

Our legal team at Dallas Horton Associates has extensive experience across all areas of personal injury law. We are ready to fight for clients in Las Vegas and the surrounding Nevada communities. We bring a detailed, evidence-focused approach to every claim, working to demonstrate clear liability and maximize your financial compensation. Please call our personal injury law office today at 702-820-5917 to discuss your legal options with a qualified attorney.