The other driver's insurer will almost always argue that you share some of the blame for your crash. In Nebraska that argument follows a fixed formula, and the exact percentages decide whether you get a full payout, a reduced one, or nothing. The rule is modified comparative negligence with a 50 percent bar, set out in Neb. Rev. Stat. § 25-21,185.09.1
Here is what that means in practice, and the parts of it that are particular to Nebraska.
The 50 percent bar in the statute's own words
Section 25-21,185.09 says that "any contributory negligence chargeable to the claimant shall diminish proportionately the amount awarded as damages," but the claimant "shall be totally barred from recovery" if their negligence "is equal to or greater than the total negligence of all persons against whom recovery is sought."1
The phrase "equal to" does real work. A 50-50 split is not a tie you survive. If a jury finds you and the other driver each half responsible, you collect nothing. To recover anything, your share has to stay below half, at 49 percent or lower. That places Nebraska among the stricter modified-comparative states. Some states let a plaintiff who is exactly 50 percent at fault still take home half of the damages; Nebraska does not.
Below that line, the math is simple. Your damages drop by your percentage of fault. On a $100,000 claim with 20 percent of the blame on you, you recover $80,000. At 40 percent, you recover $60,000. At 50 percent, you recover zero.
Your fault is compared to everyone you sue, added together
The statute does not weigh your fault against each defendant one at a time. It compares your negligence to "the total negligence of all persons against whom recovery is sought."1 That combined comparison matters when more than one driver contributed to the wreck.
Say a jury puts 40 percent of the fault on you, 35 percent on one driver, and 25 percent on another. Measured against either defendant alone, your 40 percent is the larger number. But the statute adds the two defendants together to 60 percent, and 40 is less than 60, so you still recover, with your award cut by 40 percent. If Nebraska used a defendant-by-defendant test, you would be barred. The combined method is more forgiving to injured plaintiffs, and it is the law here.
Economic and noneconomic damages split differently among defendants
Once fault is apportioned, Nebraska treats two kinds of damages differently when several defendants are on the hook. Under Neb. Rev. Stat. § 25-21,185.10, defendants are jointly and severally liable for your economic damages but severally liable, meaning each only for its own share, for your noneconomic damages.2
Economic damages are the hard-number losses: medical expenses, lost earnings and earning capacity, and the cost to repair or replace property.3 Noneconomic damages are the subjective losses, such as pain, suffering, emotional distress, and loss of consortium.3 So if one at-fault driver is uninsured or broke, you can still pursue a solvent co-defendant for the full economic damages, but only for that defendant's percentage of the pain-and-suffering award. The exception is when defendants acted together as part of a common plan; there the liability is joint and several for both categories.2
Settling with one of several drivers
If you settle with one defendant and take your case against the others to trial, section 25-21,185.11 reduces your remaining claim by the settling party's allocated share of fault, as found by the jury.4 A settlement does not let anyone collect that person's slice twice. It is one reason the fault percentages are worth fighting over even when part of the case is already resolved.
Assumption of risk is a separate defense
Contributory negligence is not the only fault-based defense an insurer can raise. Nebraska keeps assumption of risk as its own affirmative defense under Neb. Rev. Stat. § 25-21,185.12, and defines it narrowly. The person must have "knew of and understood the specific danger," "voluntarily exposed himself or herself to the danger," and been injured "as a result of his or her exposure to the danger."5 All three elements have to be present. For a routine collision this rarely applies, but it can surface where a passenger knew the driver was drunk, or someone drove into an obvious, marked hazard.
The jury has to be told what the percentages mean
Nebraska adds a procedural rule that upends cases every year. The last line of § 25-21,185.09 requires that "the jury shall be instructed on the effects of the allocation of negligence."1 Jurors have to be told, in plain terms, that assigning you 50 percent or more means you get nothing.
The Nebraska Supreme Court enforces this strictly. In Russell v. Stricker, 262 Neb. 853, 635 N.W.2d 734 (2001), the court held that failing to instruct the jury on the effect of its allocation is prejudicial error, and that a verdict form is not a substitute for a real instruction.6 The apportionment itself is usually a jury question. In Traphagan v. Mid-America Traffic Marking, 251 Neb. 143, 555 N.W.2d 778 (1996), a rear-end fatal crash case, the jury split fault 75 percent to the defendant and 25 percent to the deceased driver and returned a $750,000 award, which the court upheld.6
How Nebraska arrived at this rule
Nebraska has not always compared fault by percentage. Before February 8, 1992, the state used an unusual "slight-gross" rule: an injured person could recover only if their own negligence was "slight" and the other party's was "gross" by comparison. The 1992 comparative negligence act (Laws 1992, LB 262) replaced that system, and by its terms it applies to civil actions in which contributory negligence is a defense that accrue on or after February 8, 1992.7 Any crash today falls under the percentage-based rule, not the old slight-gross test.
Deadlines and limits that interact with fault
Fighting over fault only helps if you file in time. Nebraska gives you four years from the crash date to bring a personal injury claim, and four years for vehicle and property damage, both under Neb. Rev. Stat. § 25-207.8 Miss it and the percentages never get argued.
A few related limits are worth knowing. Nebraska is an at-fault state, so the driver who caused the crash, and that driver's liability insurer, pays; there is no no-fault system that pays regardless of blame.9 And no matter how reckless the other driver was, Nebraska does not allow punitive damages. Its constitution sends all fines and penalties to the public schools, and the courts read that provision to bar private punitive awards.10 Your recovery is your actual damages, reduced by your share of fault, and nothing on top.
If the fault dispute is serious, or your reduced recovery still leaves real losses on the table, a Nebraska attorney can press the apportionment question. You can find one through the legal directory. The police crash report often shapes the early fault narrative, and if your car lost resale value, a separate diminished value claim runs on the same four-year clock.
This is general information about Nebraska law, not legal advice.
Sources
-
Nebraska Legislature, Neb. Rev. Stat. § 25-21,185.09 (contributory negligence; effect on recovery; jury instruction). https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.09
-
Nebraska Legislature, Neb. Rev. Stat. § 25-21,185.10 (joint and several liability for economic damages; several liability for noneconomic damages). https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.10
-
Nebraska Legislature, Neb. Rev. Stat. § 25-21,185.08 (definitions of economic and noneconomic damages). https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.08
-
Nebraska Legislature, Neb. Rev. Stat. § 25-21,185.11 (release of one tortfeasor; reduction of claim by allocated share). https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.11
-
Nebraska Legislature, Neb. Rev. Stat. § 25-21,185.12 (assumption of risk as an affirmative defense). https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.12
-
Russell v. Stricker, 262 Neb. 853, 635 N.W.2d 734 (2001); Traphagan v. Mid-America Traffic Marking, 251 Neb. 143, 555 N.W.2d 778 (1996) (case annotations to Neb. Rev. Stat. § 25-21,185.09). https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.09
-
Nebraska Legislature, Neb. Rev. Stat. § 25-21,185.07 (applicability; actions accruing on or after February 8, 1992). https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.07
-
Nebraska Legislature, Neb. Rev. Stat. § 25-207 (four-year limitation for injury to personal rights and for injury to personal property). https://nebraskalegislature.gov/laws/statutes.php?statute=25-207
-
Nebraska Department of Insurance, Important Auto Insurance and Types of Coverage. https://doi.nebraska.gov/important-auto-insurance-and-types-coverage
-
Nebraska Legislature, Neb. Const. art. VII, § 5 (fines and penalties paid to the common schools; basis for Nebraska's bar on punitive damages). https://nebraskalegislature.gov/laws/articles.php?article=VII-5