Modified Comparative Negligence in Nevada

On Behalf of | Aug 1, 2011 | Publications

Nevada follows a variation of the Modified Comparative Negligence Theory, which is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff’s own negligence contributed to cause the injury. Specifically, Nevada Revised Statutes (“NRS”) 41.141(a) states in relevant part:

“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.”

Consequently, 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 barred from recovery, but his 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. We must note, however, that Nevada juries rarely find Plaintiffs to be more than 50% negligent and therefore almost never completely bar their claims.

Thus, in a two-party car accident, a defendant whose negligence constituted 50% of the total causal negligence in connection therewith, is liable to the plaintiff for 50% of her damages. State Farm Auto Ins. Co. v. Commissioner of Insurance, 114 Nev. 535, 542 (1998). 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 part or in whole by the Plaintiff’s own negligence.

In contrast to a negligence-based claim, Nevada’s Modified Comparative Negligence statute cannot be interpreted to include strict products liability in a class of actions in which contributory negligence may be asserted as a defense. Young’s Mach. Co. v. Long, 100 Nev. 692 (1984). Thus, defendants in a strict products liability action cannot use the ordinary contributory negligence of the plaintiff as a defense to lessen their potential exposure for the plaintiff’s alleged damages. However, Nevada recognizes assumption of risk and misuse of product defenses in a strict products liability actions.


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