Question: Does the “Comparative Fault Act” apply to the governmental defendants?
Answer: No. See below
Prior to 1985, Indiana common law recognized a defense of “contributory negligence” that barred recovery on a plaintiff’s negligence claim if the plaintiff was even slightly at fault. In that year, the harsh rule of contributory negligence was substantially revised when a modified comparative fault took effect. Although the Legislature dictated that fault could be apportioned between the plaintiff and defendant, a plaintiff was still barred from recovery if their own fault was greater than 50 percent. The Legislature also specified that the provisions of the new comparative fault statute would not apply to governmental entities. This exemption from comparative fault means that the common law contributory negligence principles apply when a governmental entity is the defendant in negligence litigation. Further, it is under the Comparative Fault Act that defendants may assert a “nonparty” defense, seeking to attribute fault to a nonparty rather than to the defendant, but not under the “contributory negligence” standard which still applies to governmental defendants.
Because the Comparative Fault Act does not apply to a tort claim is filed against a governmental actor, if the plaintiff is negligent to even a small degree, and that negligence proximately contributes to his claimed damages, contributory negligence will operate as a complete bar to the action.