Comparative & Contributory Negligence

You've experienced a mishap, and you're partly to blame. You may be asking, 'What comes next?' That's where Oklahoma's comparative negligence law comes in. As long as you are less than 50% at fault for the accident, you can still recover damages. The jury in your case will assign a percentage of fault to each of the parties. Your verdict will then be reduced by the percentage of your fault.
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Comparative Negligence Explained

Comparative negligence allocates fault between the plaintiff and defendant in personal injury cases, allowing for a reduction in the plaintiff’s recovery based on their degree of fault.

Oklahoma has a “modified comparative” system in that recovery is barred if the plaintiff’s negligence is 50% or more. Two Oklahoma statutes address this:

23 O.S. § 13, Comparative Negligence

In all actions hereafter brought, whether arising before or after the effective date of this act, for negligence resulting in personal injuries or wrongful death, or injury to property, contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms or corporations causing such damage.

23 O.S. § 14, “Damages Diminished in Proportion to Contributory Negligence”

Where such contributory negligence is shown on the part of the person injured, damaged or killed, the amount of the recovery shall be diminished in proportion to such person’s contributory negligence.

Under Oklahoma’s system, if a person is found to be more than 50 percent responsible for the accident, they may not receive any damages. However, if their level of fault is determined to be less than 50 percent, their compensation will be reduced proportionately to their degree of fault.

Until 1979, Oklahoma was a “contributory negligence” state. This meant a plaintiff was barred from recovering anything if they contributed in any way to the accident. Under the old law, you couldn’t recover anything if you were 1% at fault. Now, that same percentage (1%) would reduce your verdict by 1%.

FAQs Based on Oklahoma Case Law

Application of Comparative Negligence

Can a plaintiff’s recovery be reduced based on their contribution to the negligence that caused their injuries?

Yes, Oklahoma follows the doctrine of comparative negligence, which was adopted in the 1977 case Laubach v. Morgan. Under this doctrine, a plaintiff’s monetary recovery can be reduced based on their percentage of fault contributing to the injury. So if a plaintiff is found 25% at fault, their damages award would be reduced by 25%. This allows plaintiffs to recover even if they were partially negligent, as long as their negligence does not exceed 50%.

Can a plaintiff who is found more than 50% at fault recover damages from the defendant?

No, under the modified comparative negligence rule adopted by Oklahoma in Laubach v. Morgan, a plaintiff cannot recover any damages if they are found to be more than 50% at fault for their own injuries. For example, if a plaintiff is found 60% negligent and a defendant 40% negligent, the plaintiff recovers nothing. Their recovery is completely barred if their percentage of contributory negligence exceeds 50%. This 50% cutoff was specifically adopted as the rule in Oklahoma.

Does comparative negligence apply to claims of gross negligence?

Yes, the Oklahoma Supreme Court established in Graham v. Keuchel in 1987 that comparative negligence principles can be used to reduce a plaintiff’s recovery in cases involving allegations of gross negligence against the defendant. However, comparative negligence does not apply to willful, wanton, or intentional conduct by defendants. So, comparative negligence can reduce damages for gross negligence but not more egregious conduct.

Can a plaintiff recover from a defendant who is less negligent than them?

Yes, the Oklahoma Supreme Court ruled in Bode v. Clark Equipment Co. that a plaintiff’s negligence is compared against the combined negligence of all defendants in the case. So even if the plaintiff is more negligent than a particular defendant, the plaintiff can still recover damages from that defendant as long as their negligence is less than the total negligence of all defendants added together. This allows recovery from less negligent defendants.

Non-Party Negligence

Can the negligence of a non-party be considered in determining percentages of fault?

es, under Oklahoma’s system of comparative negligence, the negligence of non-parties can be considered by the jury in apportioning fault, as confirmed by the 1981 Oklahoma Supreme Court case Paul v. N.L. Industries. So even if a non-party such as the plaintiff’s employer was negligent, the jury can assign a percentage of fault to them, which is then included in the total negligence against which the plaintiff’s negligence percentage is compared. This allows full apportionment of fault between all responsible entities.

Can a non-party’s negligence reduce the defendant’s liability?

Yes, when the negligence of a non-party such as the plaintiff’s employer is considered, it can reduce the percentage of liability assigned to the defendant. For example, in the 2023 Norton v. Spring Operating case, the Oklahoma Court of Civil Appeals upheld a verdict that assigned 90% negligence to the non-party employer, reducing the defendant’s liability. So the negligence of non-parties can proportionately reduce the defendant’s share of liability.

Parent/Child Negligence

Can the negligence of a parent be imputed to their child in a personal injury case?

No, the Oklahoma Supreme Court established in Strong v. Allen in 1989 that a child’s recovery in a personal injury lawsuit cannot be barred or reduced by imputing the negligence of a parent to the child. So if a parent acted negligently, that negligence cannot be ascribed to the child to reduce the child’s recovery against a negligent defendant. The child’s negligence, if any, must be assessed independently based on the child’s own actions and capacity.

Voluntary Intoxication & Recovery

Can an intoxicated adult sue the tavern that served them for any resulting injuries?

Generally no. The Oklahoma Supreme Court held in Ohio Casualty v. Todd in 1991 that an adult patron who voluntarily becomes intoxicated at a tavern cannot sue the tavern to recover damages for any resulting injuries suffered due to their intoxication. Because the patron is responsible for their own voluntary intoxication, they are either contributorily negligent or assumed the risk of injury, precluding recovery against the tavern under comparative and contributory negligence principles.

Vendor Liability

Can a vendor be liable for selling alcohol to a minor who later suffers injuries?

Yes, the Oklahoma Supreme Court has established in cases like 1994’s Mansfield v. Circle K that a commercial vendor can be held liable for negligence if they illegally sell alcohol to a minor who later suffers foreseeable injuries as a result of consuming the alcohol. Their recovery may be reduced under comparative negligence but is not completely barred. The vendor owes a duty not to sell alcohol to minors in part to protect them from the effects of intoxication.

Can a minor’s illegal alcohol purchase completely bar vendor liability?

No, the Oklahoma Supreme Court ruled in Busby v. Quail Creek in 1994 that while a minor’s illegal actions in purchasing and consuming alcohol do not absolve the vendor of liability, their conduct can reduce their recovery through application of comparative negligence principles. So the minor’s actions would reduce but not completely prevent recovery against the negligent vendor.

Assumption of Risk

Can a defendant argue the plaintiff assumed the risk of injury to completely bar recovery?

Not automatically. The Oklahoma Supreme Court established in Byford v. Town of Asher in 1994 that whether a plaintiff assumed the risk of injury, potentially barring their recovery, is a question of fact for the jury to decide rather than an automatic complete bar to recovery. There must be evidence the plaintiff knew of the dangerous condition and voluntarily exposed themselves to it.

Bifurcation of Trials

Are defendants who are jointly liable for negligence able to request bifurcated trials?

Generally no. The Oklahoma Supreme Court ruled in Willis Knight v. George McBee in 1988 that absent compelling circumstances, joint tortfeasors named in a single negligence cause of action cannot have bifurcated trials. Since Oklahoma’s comparative negligence regime already provides for apportioning liability between multiple defendants, bifurcation to determine liability separately is usually unnecessary and improper.

Damages Caps & Awards

Can a percentage-reduced award under the statutory cap be further reduced by the plaintiff’s negligence percentage?

No, the Oklahoma Supreme Court established in Boling v. City of Tulsa in 1988 that first, the jury’s damages award is reduced based on the plaintiff’s percentage of comparative negligence, and only then is it considered whether the reduced award exceeds a statutory damages cap. So a plaintiff’s comparative negligence reduction is applied first, and does not itself lower an award beyond a cap.

Does joint and several liability apply when the plaintiff is not negligent?

Yes, the Oklahoma Supreme Court held in Berry v. Empire Indemnity Insurance in 1981 that the traditional joint and several liability rule still applies to allow a non-negligent plaintiff to recover full damages from multiple defendants. Joint and several liability is not affected by comparative negligence unless the plaintiff was also negligent.

Federal Preemption

Are railroads immune from state negligence claims due to federal preemption?

No, the Oklahoma Supreme Court determined in Hightower v. Kansas City Southern Railway in 2003 that while federal regulations preempt state law negligence claims against railroads in certain areas like speed limits and warning devices, state law comparative negligence jury instructions can still be given for negligence claims that are viable under federal preemption principles. So, railroads are not entirely immune from state negligence law.

Professional Negligence

Does professional negligence by a defendant preclude recovery by the plaintiff?

No, the Oklahoma Supreme Court ruled in Stroud v. Arthur Andersen & Co. in 1997 that in professional negligence claims, a plaintiff’s contributory negligence is only relevant if it interfered with the defendant’s provision of professional services. The plaintiff’s negligence does not automatically preclude their recovery against a professionally negligent defendant. Their recovery may be reduced but not barred.

Can architectural negligence harm third parties?

Yes, the Oklahoma Supreme Court determined in Boren v. Thompson & Associates in 1999 that an architectural firm could potentially be liable in negligence to third parties that are foreseeably harmed by the firm’s negligence. While any negligence of the plaintiff may reduce their recovery, the architectural firm is not shielded from liability. Comparative negligence principles apply but do not necessarily prohibit recovery.

Apportioning Liability Among Negligent Parties

Can more than one party be liable for negligence?

Yes, the 1999 Boren v. Thompson & Associates case demonstrated that Oklahoma law allows multiple parties to potentially share liability through application of comparative negligence. If negligence by both the defendant and a third party like the plaintiff’s employer contributed to the plaintiff’s damages, liability can be apportioned between all negligent entities based on their relative fault.