7.22 Third Party Action under Longshoreman’s and Harbor Workers Compensation Act – Comparative Negligence
If in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that plaintiff was contributory negligent, you will apply the following principle of law commonly referred to as the law of comparative negligence.
In an action such as this, to recover damages for personal injuries, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
This provision which deals with the effect of the plaintiff’s contributory negligence upon the amount of his/her recovery, states two principles of law:
- The fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery, but
- if the plaintiff is guilty of contributory negligence the effect of such contributory negligence is that the damages the plaintiff is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
These provisions of law are applicable to the facts in this case in the following manner:
First, ascertain the amount of damages that the plaintiff would be entitled to without reference to his/her contributory negligence.
Second, ascertain the proportion or percentage of such amount of damages which is attributable to plaintiff’s contributory negligence.
Third, diminish the amount ascertained in the first step by the proportion or percentage of contributory negligence ascertained in the second step.
The amount remaining is the amount the plaintiff is entitled to.
Alternate Charge
If in accordance with the principles of law heretofore given you, you find that the defendant was negligent and that plaintiff was contributory negligent, you will apply the following principle of law commonly referred to as the law of comparative negligence.
In an action such as this, to recover damages for personal injuries, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
This provision which deals with the effect of the plaintiff’s contributory negligence upon the amount of his/her recovery, states two principles of law:
- The fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery, but
- if the plaintiff is guilty of contributory negligence the effect of such contributory negligence is that the damages the plaintiff is entitled to shall be diminished by you in proportion to the amount of such contributory negligence.
To explain how to apply the doctrine of comparative negligence to the facts of this case, I shall use an illustration.
You may determine that the amount of the plaintiff’s damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 50%. You would compute what 50% of X dollars is, that is, 50 cents times each of X dollars, and diminish the amount of X dollars by 50% or 50 cents out of each dollar, which would leave the amount 50% of X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff’s damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 10%. You would compute what 10% of X dollars is, that is, 10 cents times each of X dollars, and diminish the amount of X dollars by 10% or 10 cents out of each dollar, which would leave the amount of 90% of X dollars to which the plaintiff would be entitled in your verdict.
You may determine that the amount of the plaintiff’s damages for his/her personal injuries was X dollars and that the percentage or proportion of that amount of X dollars which is attributable to the plaintiff because of his/her contributory negligence is 90%. You would compute what 90% of X dollars is, that is, 90 cents times each of X dollars, and diminish the amount of X dollars by 90% or 90 cents out of each dollar, which would leave the amount 10% of X dollars to which the plaintiff would be entitled in your verdict.
