Federal & State Lawfederalstatelaw.com
Back to Questions
consumerPA

How does comparative fault work in Pennsylvania?

Federal & State Law Editorial TeamLast reviewed: 2026-05-18

1. Negligence Elements. Pennsylvania negligence requires duty, breach, causation (factual and proximate), and damages (Krentz v. Consol. Rail Corp., 589 Pa. 576). Restatement (Second) of Torts heavily relied upon.

2. Comparative Fault Regime. 42 Pa.C.S. § 7102(a) establishes modified comparative: contributory negligence does not bar recovery "where such negligence was not greater than the causal negligence of the defendant or defendants." Greater than 50% bars; 50% or less, damages reduced proportionally. This is a 51% bar regime.

3. Joint and Several Liability — Fair Share Act. 42 Pa.C.S. § 7102(a.1), the 2011 Fair Share Act, replaced pure J&S with several liability except: (1) intentional misrepresentation, (2) intentional tort, (3) defendant ≥ 60% liable, (4) hazardous substance release under HSCA, and (5) dram shop violations of Liquor Code. Outside those, each defendant pays only its percentage share.

4. Last Clear Chance / Sudden Emergency. Last clear chance was subsumed (McIntyre v. Pa. R.R., 365 Pa. 414, predates comparative). Sudden emergency survives as Pa. SSJI 13.190.

5. Settling Tortfeasors. Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. § 8326 — settling tortfeasor's release reduces claim by greater of consideration paid or pro rata share. Joint tortfeasor releases addressed at § 8327.

6. Statute of Repose vs SOL. Personal injury SOL is 2 years (42 Pa.C.S. § 5524). Construction repose is 12 years (§ 5536). MCARE statute of repose for med-mal is 7 years (40 P.S. § 1303.513).

7. Caps. No general noneconomic cap. Pennsylvania Constitution Art. III § 18 prohibits caps on bodily injury damages. Punitive damages against med-mal defendants capped at 200% of compensatory under MCARE § 505. Sovereign immunity caps state liability at $250,000/$1,000,000 (42 Pa.C.S. § 8528).

8. Wrongful Death Comparative. Wrongful Death Act (42 Pa.C.S. § 8301) and Survival Act (§ 8302) actions apply § 7102 comparative fault.

9. Worker Injuries. WC Act § 481 (77 P.S.) exclusive remedy. Third-party suits use § 7102; employer is generally not a defendant for apportionment (Tooey v. AK Steel, 81 A.3d 851).

This is legal information, not legal advice.

When to Talk to a Lawyer
  • Multi-defendant case where Fair Share Act several-only rule risks under-collection from insolvent party
  • Plaintiff fault hovering near 50% bar threshold
  • Med-mal claim approaching MCARE 7-year repose
Related Statutes & Laws
  • 42 Pa.C.S. § 7102
  • 42 Pa.C.S. § 8326
  • 40 P.S. § 1303.505

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.