Contributory Negligence vs. Comparative Negligence
When a claim for damages caused by an accident is filed with a court, the fact-finder (judge or jury, depending on the proceeding) must determine who caused the accident. The person whose negligence caused the accident typically pays for the resulting damage. If more than one person caused the damage, then negligence is distributed between the parties based on state apportionment laws. The fact-finder may determine that actions of the defendant, the plaintiff, or both, caused the accident. Based on the evidence submitted, the judge or jury will then allocate the amount or percentage that each party was negligent. Depending on the jurisdiction, this allocation will directly impact the damages awarded.
Throughout the United States, there are four systems used in establishing damage awards: pure contributory negligence, pure comparative negligence, modified comparative negligence – 50% bar rule, and modified comparative negligence – 51% bar rule.
Historically, contributory negligence was a common law defense available in tort actions. In the past, if two people were in an accident, the injured person could only recover for his/her injuries and damages if they did not contribute to the accident in any way. This approach was based on a policy originally established in England that stated a person who negligently causes harm to another cannot be held liable if that injured individual contributed to his own suffering and injury, even if it was only a very slight factor. For example, if Dave and Debbie were in an accident where Jane was injured, and Jane was only 5% at fault, she would recover nothing. This method of calculating damages is still followed in states with a pure contributory negligence system. In light of the potentially harsh result, most states have moved from the strict nature of a pure contributory negligence system to some form of a comparative negligence system. Currently, only five (5) states, including the District of Columbia, follow the pure contributory negligence rule.
In a comparative negligence system, the injured party may still recover some of his or her damages even if he or she was partially to blame for causing the accident. Plaintiff’s financial recovery may be reduced, or even prohibited, depending how plaintiff’s actions caused or contributed to the accident. In states using a comparative negligence system, a jury or judge determines the proportion of fault to be assigned to each responsible party. Jurisdictions following a comparative negligence system will typically apportion the damages using one of three variations of comparative negligence: pure comparative negligence, modified comparative negligence – 51% rule, or modified comparative negligence – 50% rule.
Presently, thirteen (13) states follow a pure comparative negligence system: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington. In a pure comparative negligence system, a judge or jury assigns a percentage of fault to each responsible party and then apportions the damage award accordingly. Using this system, an injured person may recover his or her damages even if the injured person was 99% at fault in causing the injury, with those damages reduced by his or her portion of the fault. For example, in a car accident between Dave and Debbie where Debbie was found to be 99% responsible, and the jury found that Debbie suffered $10,000 in damages, that award would be reduced by Debbie’s 99% fault in causing the injury. In the end, Dave would only have to pay 1% of Debbie’s damages, or $100 in this case.
Thirty-three (33) states follow a modified comparative fault system. Similar to a pure comparative negligence system, a judge or jury assigns a percentage of fault to each responsible party and then apportions the damage award accordingly. From that point, depending on how the system is applied, if a plaintiff’s apportioned fault reaches a particular level, he or she may be completely prohibited from recovering a damage award.
Of the thirty-three states following a modified comparative fault system, twelve (12) states follow a 50% rule. In states following a modified comparative fault – 50% rule, an injured party can only recover if it is determined that his or her fault in causing the injury is 49% or less. If the injured party’s fault level reaches 50%, he or she cannot recover any damages resulting from the accident. Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia follow the 50% rule.
Of the thirty-three states following a modified comparative fault system, the remaining twenty-one (21) states follow a 51% rule. In states following a modified comparative fault – 51% rule, an injured party can only recover if it is determined that his or her fault does not reach 51%. If the injured party was 50% or less at fault, he or she may still recover damages. In other words, a plaintiff may have caused half of the accident and still recover damages from the court, but if it is found that the plaintiff’s fault was responsible for more than half of the accident, that plaintiff is barred from receiving any damages determined by the court. Here, as in a pure comparative negligence state, a plaintiff’s recovery is reduced by the degree of his or her fault. Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming follow the 51% rule.
Remember that many exceptions to the standard negligence systems are present in several states. Additionally, some states limit the types of cases to which these negligence systems may apply. The information present in this article and following table should only be used as a guide. Specific questions should be directed to a qualified attorney licensed in your state. Nothing in this summary should be construed as legal advice.
Click here to see a Comparative Fault by State chart that briefly outlines contributory vs. comparative negligence for each state.
For more information on Contributory Negligence vs. Comparative Negligence for a specific state, click on the state below.