Comparative negligence rules in North Dakota

After a crash in North Dakota, the other driver's insurer will usually argue you were at least partly to blame. Maybe you were carrying a little too much speed, or you braked late on an icy road. How much that argument costs you comes down to one statute: North Dakota's modified comparative fault rule. It can shave a percentage off your recovery, and past a certain line it can end your claim completely.

The 50 percent bar, and why "combined fault" matters

North Dakota uses modified comparative fault. Under N.D.C.C. § 32-03.2-02, your own fault "does not bar recovery ... unless the fault was as great as the combined fault of all other persons who contribute to the injury," and any damages you win "must be diminished in proportion to the amount of contributing fault attributable to" you.¹

Two things follow from that sentence. Your recovery drops by your percentage of fault, so a $100,000 case with you 30 percent responsible pays out $70,000. And there is a cliff. Once your share is "as great as" everyone else's combined share, you recover nothing. In a plain two-car crash that line sits at 50 percent. At 49 percent you still take home just over half; at a 50/50 split you get zero, because equal fault counts as "as great as."¹

The word "combined" earns its place when more than one person is at fault. Suppose you are 40 percent responsible and two other drivers are 30 percent each. Their combined fault is 60 percent, your 40 is less than that, so you recover 60 percent of your damages. North Dakota measures you against the whole group, not against each defendant one at a time.¹

The North Dakota Supreme Court showed the sharp edge of this rule in Sollin v. Wangler, where the plaintiff's fault was found as great as the defendants' and the trial court dismissed the claim.²

What the law counts as "fault"

Fault reaches well past careless steering. Section 32-03.2-01 defines it to include acts or omissions that are negligent or reckless, assumption of risk, misuse of a product, and the failure to use reasonable care to avoid an injury or to mitigate damages.³ Section 32-03.2-02 extends the list to negligence, malpractice, reckless or willful conduct, dram shop liability, failure to warn, and product liability.¹ Causation still has to be proven for your fault the same way it does for theirs.³

The mitigation piece catches people off guard. Skip your follow-up treatment and let an injury worsen, and that choice can be charged back to you as contributing fault.³

The seat belt rule that surprises people

A common assumption is that going unbuckled hands the defense an automatic discount. In North Dakota it does not. Not wearing a seat belt "is not, in itself, evidence of negligence," and the fact of the violation "is not admissible in any proceeding other than one charging the violation" (N.D.C.C. § 39-21-41.4 for adult occupants, § 39-21-41.2 for child restraints).⁴ The other side cannot put your unbuckled belt in front of a jury to push your percentage up. That is a North Dakota answer; several states go the other way.

Several liability: each defendant pays only its share

When two or more parties contribute to an injury, section 32-03.2-02 makes "the liability of each party ... several only, and ... not joint," so each one "is liable only for the amount of damages attributable to the percentage of fault of that party."¹ North Dakota gave up joint and several liability here.

This matters most when one at-fault driver has no money or no insurance. If a jury assigns 70 percent to an uninsured driver and 30 percent to an insured one, you can collect only 30 percent from the insured defendant. You cannot make the solvent party pick up the missing 70. That gap is a strong reason to carry uninsured and underinsured motorist coverage, which North Dakota requires on every auto policy.⁵

One exception survives. People who act in concert, or who aid, encourage, ratify, or adopt the wrongful act, are jointly liable for their combined share.¹ And because the statute has the jury assign percentages to "each person, whether or not a party," a defendant can point at an absent non-party to move fault off itself, the so called empty chair.¹

No-fault first, comparative fault second

Comparative negligence does not enter the picture until you are allowed to sue in tort, and North Dakota adds a step before that. The state runs a no-fault system under the Auto Accident Reparations Act. Your own insurer pays basic no-fault benefits up to $30,000 per person per accident no matter who caused the crash.⁶

You can bring a fault-based claim for pain and suffering only after your injury clears the statutory "serious injury" threshold: death, dismemberment, serious permanent disfigurement, permanent disability, a disability lasting more than 60 days, or medical expenses over $2,500.⁶ Comparative fault then decides how much of that tort claim you keep. A clear record of what happened helps fix the fault split, and you can order the official state crash report to document it.⁷ For the how-to, see crash reports in North Dakota.

A quirk for small property damage claims

North Dakota carves out an odd exception for minor vehicle damage. Under section 32-03.2-02.1, your property damages are not reduced by your own share of fault when three conditions hold: the damage comes from a two-party motor vehicle crash, you claim no more than $5,000 in direct physical property damage plus no more than $1,000 indirect, and the other party's fault is over 50 percent.⁸ It covers property only, not injuries. If your car lost resale value after a proper repair, that is a separate claim; see diminished value in North Dakota.

How the fault reduction fits with everything else

The steps run in order. When any party asks, the jury returns special verdicts setting both the total damages and each person's percentage of fault, and the court then reduces your award by your share.¹ Fault reduction and the collateral source reduction are separate calculations, and the jury is never told about the collateral source step.⁹

A few figures shape what happens after that. An award of economic damages over $250,000, measured before any reduction for your fault, can go to the judge for a reasonableness review, which is a check on unsupported numbers rather than a hard damages cap.¹⁰ Exemplary (punitive) damages are capped at twice the compensatory award or $250,000, whichever is greater, and become easier to reach against a driver who was over the 0.08 percent alcohol limit, drug impaired, or who refused a chemical test.¹¹ If the defense wants your award cut for your fault, it has to file that motion within ten days of the verdict.¹²

Deadlines you cannot miss

North Dakota gives you an unusually long window to sue for a personal injury: six years from the crash under N.D.C.C. § 28-01-16(5).¹³ Property damage claims also run six years under § 28-01-16(4), while a wrongful death action must be filed within two years of the death under § 28-01-18(4).¹⁴ Long as that injury window is, fault evidence does not keep. Witnesses move on and dashcam files get overwritten, so the percentages only get harder to prove as time passes. If you are weighing a claim, talk to a lawyer early; you can start with the legal directory.

This article is general information, not legal advice.

Sources

1. North Dakota Century Code § 32-03.2-02, Modified comparative fault. https://ndlegis.gov/cencode/t32c03-2.pdf

2. Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159 (N.D. 2001). https://www.courtlistener.com/c/nd/2001/96/

3. North Dakota Century Code § 32-03.2-01, Definition of "fault." https://ndlegis.gov/cencode/t32c03-2.pdf

4. North Dakota Century Code §§ 39-21-41.4 and 39-21-41.2, safety belt and child restraint use (evidence). https://ndlegis.gov/cencode/t39c21.pdf

5. North Dakota Century Code §§ 26.1-40-15.2 and 26.1-40-15.3, mandatory uninsured and underinsured motorist coverage. https://ndlegis.gov/cencode/t26-1c40.pdf

6. North Dakota Century Code ch. 26.1-41, Auto Accident Reparations Act (serious injury threshold; $30,000 basic no-fault benefits). https://ndlegis.gov/cencode/t26-1c41.pdf

7. North Dakota Department of Transportation, Purchase a Crash Report. https://www.dot.nd.gov/travel-and-safety/safety/purchase-crash-report

8. North Dakota Century Code § 32-03.2-02.1, Automobile accident damage liability. https://ndlegis.gov/cencode/t32c03-2.pdf

9. North Dakota Century Code §§ 32-03.2-06 and 32-03.2-10, collateral source reduction and nondisclosure. https://ndlegis.gov/cencode/t32c03-2.pdf

10. North Dakota Century Code § 32-03.2-08, Review of reasonableness of economic damages. https://ndlegis.gov/cencode/t32c03-2.pdf

11. North Dakota Century Code § 32-03.2-11, When court or jury may give exemplary damages. https://ndlegis.gov/cencode/t32c03-2.pdf

12. North Dakota Century Code § 32-03.2-12, Post-trial review. https://ndlegis.gov/cencode/t32c03-2.pdf

13. North Dakota Century Code § 28-01-16(5), six-year limitation for injury to the person. https://ndlegis.gov/cencode/t28c01.pdf

14. North Dakota Century Code § 28-01-18(4), two-year limitation where death ensues from injury. https://ndlegis.gov/cencode/t28c01.pdf