In personal injury cases, the road to recovery can be challenging. After an accident, you might assume that if someone else was at fault, your path to compensation is straightforward. However, Nebraska's legal system introduces the concept of contributory negligence, which can significantly impact how much compensation you receive — or whether you receive any at all.
As a plaintiff’s attorney, one of the key strategies for getting the top dollar for your clients is to understand how Nebraska Revised Statute § 25-21,185.09 works in practice. This statute governs how contributory negligence impacts civil actions, ensuring that any negligence on the part of the injured party reduces their compensation but does not necessarily bar them from recovery—unless it meets certain conditions.
In this article, we’ll explore what contributory negligence means in Nebraska personal injury cases, how it can affect your client's compensation, and effective strategies for minimizing the impact of this defense.
Contributory negligence refers to the idea that an injured party (the plaintiff) can be partially responsible for their own injuries. In personal injury cases, this becomes crucial because Nebraska law requires that any contributory negligence on the part of the plaintiff diminishes the amount of damages awarded.
Under Neb. Rev. Stat. § 25-21,185.09, if the plaintiff’s negligence is equal to or greater than the combined negligence of all the defendants, the plaintiff is completely barred from recovery. Otherwise, any damages awarded will be reduced proportionately based on the plaintiff’s share of the fault.
For example:
This is known as modified comparative negligence, and it can have a major impact on the value of a personal injury claim.
Nebraska’s contributory negligence statute applies to a wide variety of personal injury cases, including:
In each of these scenarios, defense attorneys will attempt to argue that the plaintiff bears some responsibility for their injuries. The goal for defense lawyers is to reduce the defendant’s liability or eliminate it entirely by shifting a significant portion of the blame onto the plaintiff.
This tactic can be devastating if not properly addressed, which is why it’s critical to counter arguments of contributory negligence with solid legal strategies.
Nebraska follows a 50% bar rule, meaning that if the plaintiff’s negligence is equal to or greater than the total negligence of the defendants, the plaintiff will be completely barred from recovery.
This makes contributory negligence a key defense for defendants in personal injury cases, and it highlights the importance of minimizing the plaintiff’s perceived level of fault.
In many personal injury cases, the defense will attempt to argue that the plaintiff’s actions contributed to their own injuries. Some common scenarios where contributory negligence is raised include:
In a car accident case, a defendant might argue that the plaintiff was speeding, distracted, or failed to obey traffic signals, contributing to the crash. Even if the defendant was intoxicated or clearly ran a red light, any evidence that the plaintiff was also negligent could reduce or bar their recovery.
In premises liability cases, the defense might claim that the plaintiff failed to watch where they were going, ignored obvious hazards, or was wearing inappropriate footwear. These arguments are used to show that the plaintiff was partially at fault for their injuries.
In medical malpractice cases, defense attorneys may argue that the patient contributed to their injury by failing to follow medical advice or delaying necessary treatment. This can reduce the defendant’s liability, even in cases where the medical provider made a serious error.
In defective product cases, manufacturers or sellers might argue that the plaintiff misused the product or ignored warnings, contributing to their own injury. This can be a significant factor in product liability litigation.
In pedestrian accidents, contributory negligence may be raised if the pedestrian was crossing the street illegally, walking while distracted, or failing to follow traffic signals. Even though the driver may be primarily at fault, the plaintiff’s behavior can significantly reduce their recovery.
Successfully handling contributory negligence defenses requires a clear strategy that involves gathering strong evidence, crafting persuasive arguments, and anticipating the defense’s moves. Here are some critical steps for overcoming contributory negligence claims in a personal injury case:
One of the most effective ways to counter contributory negligence claims is to gather comprehensive evidence that demonstrates the defendant’s primary fault. This may include:
In many cases, the defense will attempt to stretch the facts to claim that the plaintiff was negligent. It’s your job as a plaintiff’s attorney to discredit these arguments and show that the plaintiff’s actions were reasonable under the circumstances.
For example, in a slip and fall case, if the defense claims that the plaintiff should have noticed the hazard, you can present evidence that the hazard was not visible or that the plaintiff acted reasonably under the circumstances (such as in a dimly lit area).
Even if the plaintiff bears some responsibility, it’s important to emphasize the defendant’s primary role in causing the injury. By focusing on the defendant’s failure to follow safety protocols, disregard for traffic laws, or other negligent actions, you can minimize the impact of any contributory negligence on the plaintiff’s part.
For example, in a car accident case, if the defense argues that the plaintiff was speeding, you can highlight the fact that the defendant ran a red light or was texting while driving, thereby proving that the defendant’s negligence was the primary cause of the accident.
Expert witnesses can be invaluable in overcoming contributory negligence defenses. A medical expert can explain how the plaintiff’s injuries are consistent with the defendant’s negligence, while an accident reconstruction expert can provide a clear picture of how the accident occurred and why the defendant was at fault.
Under Nebraska law, the jury must be instructed on the effects of contributory negligence. As a plaintiff’s attorney, it’s critical to ensure that the jury fully understands how to allocate negligence and what that means for the plaintiff’s recovery.
A proper jury instruction should emphasize that even if the plaintiff is partially at fault, they are still entitled to compensation unless their negligence exceeds that of the defendant. Making sure the jury is well-informed can make the difference between winning a case and losing it.
When contributory negligence is raised as a defense, the plaintiff’s potential recovery will be reduced based on their percentage of fault. However, there are several strategies you can use to maximize the final settlement or judgment:
In addition to medical bills and lost wages, personal injury plaintiffs are entitled to recover non-economic damages such as pain and suffering, emotional distress, and loss of enjoyment of life. By presenting compelling evidence of the plaintiff’s pain and suffering, you can increase the overall value of the case even if their recovery is reduced due to contributory negligence.
In cases where contributory negligence is likely to be a major issue at trial, it may be beneficial to negotiate a pre-trial settlement. Settling before trial allows the plaintiff to avoid the risk of a complete bar to recovery and ensures that they receive at least some compensation.
If the court fails to properly instruct the jury on contributory negligence, this can be grounds for an appeal. Nebraska law requires that the jury be fully informed about how contributory negligence affects the allocation of damages, and failing to do so can result in a mistrial or reversal on appeal.
In Nebraska personal injury cases, contributory negligence is a powerful defense that can drastically reduce or eliminate a plaintiff’s recovery. As a plaintiff’s attorney, it’s crucial to understand the nuances of Nebraska’s comparative negligence law and to develop a clear strategy for overcoming this defense.
By gathering strong evidence, discrediting the defense’s arguments, and focusing on the defendant’s primary negligence, you can help your clients maximize their compensation and avoid the pitfalls of contributory negligence. At Ironclad Injury Law, we specialize in fighting for injured clients and ensuring they receive the compensation they deserve — even when the odds are stacked against them.
If you or a loved one has been injured in Nebraska and are facing a contributory negligence defense, contact us today for a free consultation. Let us help you fight back and secure the compensation you deserve.
