Contributory and Comparative Negligence

Accidents take place everyday -- people are injured and property is damaged. When personal injury cases like car accidents happen, one of the first questions people typically ask is: "Who was at fault for the tort?" The concepts of contributory and comparative negligence address this question and provide a way to allocate fault between parties when the answer to this question is not entirely clear. As the terms imply, a party may contribute to an act of negligence or be comparatively negligent for their own injuries.

This article discusses contributory and comparative negligence and how they come into play in an injury claim. Understanding the difference between comparative negligence states and jurisdictions that follow the contributory negligence rule can help you optimize your plaintiff's negligence or defendant's negligence claim for the most appropriate damages award.

Overview of Negligence in Accident or Injury Claims

Negligence is a term used to characterize conduct that creates an unreasonable risk of harm to others. If you're negligent, and your negligence causes another person to become injured, then you're legally responsible for paying damages. In order to prevail on a negligence claim, the party will have to prove the following elements:

1. The defendant owed a duty toward the plaintiff (i.e. reasonable care for other's safety)
2. The defendant failed to act in a reasonable way, or breached its duty (for example, a driver was reckless or intoxicated)
3. The defendant's breach was the actual cause of another's injuries
4. The defendant's breach was the proximate cause of the injuries (the defendant should have known that the breach would cause injury)
5. The plaintiff suffered actual injuries, for which they may claim damages

Contributory Negligence

The concept of contributory negligence or comparative fault is used to characterize conduct that creates an unreasonable risk to one's self. The idea is that an individual has a duty to act as a reasonable person. When a person does not act this way and injury occurs, that person may be held entirely or partially responsible for the resulting injury, even though another party was involved in the accident.

For example, Dave, a motorist, strikes Sally, a pedestrian who was crossing the street without carefully checking traffic or heeding the warning of the do-not-cross sign of the nearby streetlight. Who's at fault in this situation?

After an injured party files a negligence claim, the defendant (the person sued) may then assert a contributory negligence claim against the plaintiff (the person bringing the lawsuit), effectively stating that the injury occurred at least partially as a result of the plaintiff's own actions. This would be a contributory negligence counterclaim, a common defense to negligence claims.

If the defendant is able to prove the contributory negligence claim, the plaintiff may be totally barred from recovering damages or her damages may be reduced to reflect her role in the resulting injury. The pedestrian in the example, Sally, probably would be considered at least partially at fault (and therefore liable for contributory negligence) for carelessly crossing the street.

Alongside the District of Columbia, the four states that follow the contributory negligence rule are Alabama, Maryland, North Carolina, and Virginia.

Comparative Negligence

Most states have now adopted a comparative negligence approach to contributory negligence, wherein each party's negligence for a given injury is weighed when determining damages. There are two types of comparative negligence legal doctrines.

Traditionally, the courts viewed contributory negligence as a total bar to the recovery of any damages. Under the traditional view, if a person had contributed to the accident in any way, the person was not entitled to compensation for his or her injuries. In an attempt to reduce the harsh, oftentimes unfair outcomes resulting from this approach, most states have now adopted a comparative negligence approach.

There are two approaches to the comparative negligence doctrine:

1. Pure Comparative Negligence: Plaintiff's damages are totaled and then reduced to reflect their contribution to the injury. For example, if a plaintiff was awarded $10,000 and the judge or jury determined that the plaintiff was 25% responsible for their would be awarded $7,500. New York is among the thirteen states that apply this form of comparative negligence rule.
2. Modified Comparative Negligence: This is the most common approach and applies in states like Colorado. Plaintiff will not recover if they're found to be either equally responsible or more responsible for the resulting injury. In other words, in order to collect damages, the plaintiff must not be more than 50% at fault for the resulting injury.

Get Legal Help With Your Contributory or Comparative Negligence Claim

If you've been sued for negligence but believe the plaintiff is at least partially at fault, you may be able to file a counterclaim for contributory negligence or comparative negligence. Consider having a personal injury attorney licensed in your state review the merits of your claim. A professional attorney-client relationship with a local personal injury lawyer can help you determine whether the contributory negligence system or comparative negligence law is most relevant to your jurisdiction, thereby providing you with a thorough case evaluation for your insurance claim or personal injury claim.