Dateline: July, 2008, Issue 2

What damages do jurors award to non-negligent versus partially negligent plaintiffs?

The law treats the determination of negligence and the awarding of damages as independent issues. Are jurors able to separate the issues of liability and damages in comparative negligence cases?

Zickafoose and Bornstein (1999) conducted two studies examining how a plaintiff's partial negligence affects jurors' damage awards. In both studies, jurors were asked to determine damage awards in a medical malpractice case in which liability had already been established. Jurors learned about the case and were provided information related to determining damages. Additionally, one-third of the jurors were told that the plaintiff was not negligent (had 0% negligence), while the remaining jurors were told that the plaintiff either was 20% or 40% negligent. All jurors were instructed to ignore the plaintiff's negligence when determining damages.

In both studies, despite instructions, jurors awarded more money to non-negligent plaintiffs than to partially negligent plaintiffs (with no difference in awards to the 20% and 40% partially negligent plaintiffs). Approximately 20% of the jurors who were told the plaintiff was partially negligent adjusted the damages they awarded because of the plaintiff's negligence.

Partially negligent plaintiffs received the same amount of compensatory and "pain and suffering" damages as non-negligent plaintiffs, but lower non-economic awards for "bodily injury" damages.

In sum, jurors "discount" damage awards for partially negligent plaintiffs. Because damages awarded by jurors are also reduced by the court in accordance with the plaintiff's negligence, the researchers concluded that damage awards are "doubly discounted" for partially negligent plaintiffs.

Source Zickafoose, D. J., & Bornstein, B. H. (1999). Double discounting: The effects of comparative negligence on mock juror decision making. Law and Human Behavior, 23, pp. 577-596.