PA: The Fair Share Act, and a Separate Total Bar

One set of rules decides your fault percentage. A genuinely separate doctrine can still end a Pennsylvania claim entirely, outside that math.

The defendant carries the burden

Under 42 Pa.C.S. § 7102, the burden of establishing comparative negligence rests on the defendant, not the plaintiff. A plaintiff doesn't need to affirmatively disprove their own fault; the defendant has to prove it if they want it to reduce or bar the claim.

The Fair Share Act, in practice

Since Pennsylvania's Fair Share Act took effect in 2011, each defendant found liable is generally responsible only for the specific percentage of negligence the jury attributed to them — not a co-defendant's share as well. In a multi-defendant case, this means collecting the full judgment can require pursuing each defendant individually for their own portion, rather than collecting the entire amount from whichever defendant has the deepest pockets.

A genuinely separate doctrine: assumption of risk

Here's a real wrinkle worth understanding. In certain premises liability cases, Pennsylvania courts have allowed assumption of risk — framed as a "no duty" analysis rather than a comparative fault question — to act as a complete bar to recovery. Pennsylvania courts have not uniformly applied the Comparative Negligence Act to prevent this outcome, meaning assumption of risk can function as its own, separate total bar in some scenarios, distinct from the proportional 51% fault analysis that governs most other claims.

Why this distinction genuinely matters

Because assumption of risk can operate outside the ordinary comparative negligence framework in certain premises liability contexts, a claim that would otherwise survive the 51% bar analysis could still be barred entirely on this separate ground. Recognizing which doctrine actually applies to a specific set of facts is a genuinely important part of evaluating a Pennsylvania premises liability claim.

Who ultimately decides

If a case goes to trial, the jury determines the fault percentages that drive the 51% bar, while a judge may separately address whether assumption of risk applies as a threshold legal question. In the far more common scenario of a negotiated settlement, the parties and their insurers effectively work out these same questions between themselves. See our Pennsylvania comparative negligence calculator to see how sharply the outcome changes on either side of the 51% line.

How fault is assigned in Pennsylvania — frequently asked questions

Who has the burden of proving comparative negligence in Pennsylvania?

The defendant. Pennsylvania law places the burden of establishing the plaintiff's comparative negligence on the party raising it as a defense, not on the plaintiff to disprove it.

How does the Fair Share Act change what each defendant actually pays?

Since 2011, each defendant is generally liable only for the percentage of negligence the jury attributed to them specifically, rather than potentially covering a co-defendant's share as well.

What is assumption of risk, and how is it different from comparative negligence?

Assumption of risk, when framed as a no-duty analysis in certain premises liability cases, can act as a complete bar to recovery — separate from and not necessarily governed by the comparative negligence statute's proportional reduction approach.

Has Pennsylvania applied its comparative negligence statute uniformly to assumption of risk cases?

No. Pennsylvania courts have not uniformly applied the Comparative Negligence Act to prevent assumption of risk from acting as a total bar in certain premises liability scenarios.

Who ultimately decides fault percentages in a Pennsylvania claim?

The jury, if a case goes to trial. In a negotiated settlement, the parties effectively work out this same comparison between themselves.

This page provides general guidance only and is not legal advice. Figures are based on Pennsylvania statute and case law (42 Pa.C.S. § 7102), verified per our methodology. Confirm how these considerations apply to a specific claim with a licensed Pennsylvania attorney before acting.