What Is Contributory Negligence?

It is rare for someone to be fully blameless in an accident. Although sometimes a flowerpot can just fall from a windowsill, it is more common for multiple parties to share responsibility. Even accident victims might bear some responsibility for their own injuries.

Each state’s negligence laws determine when a party can recover damages in a personal injury lawsuit (and how much they can recover). Most states allow recovery even with some shared fault. This is known as comparative negligence.

But a few states will not permit you to recover damages if you share any blame in the accident. These states follow the contributory negligence doctrine.

For example, when parties file claims with their insurance companies after a car accident, the companies must determine liability. Maybe one party was speeding, but the other ran a red light. Assigning each party a percentage of fault lets the insurers make timely and accurate payments to their clients.

However, in a contributory negligence state, if the driver who was hit is found to be just 1% at fault for speeding, they could be completely barred from recovering any money from the driver who ran the red light.

What Is Negligence?

Negligence is an important part of tort claims (civil claims related to personal injuries). Before a court can consider contributory negligence, a plaintiff (the injured person) must first prove that the defendant (the person they are suing) was negligent.

Negligence is more than just carelessness. In a negligence case, a plaintiff generally must show that:

• The defendant had a duty of care (can be a legal duty, or what a reasonable person would do)
• They breached that duty
• The defendant’s negligence directly caused the plaintiff’s injuries and damages

For example, all drivers have a legal duty to obey traffic signals. If a driver runs a red light and causes a collision, they have breached that duty. The injuries and vehicle damage suffered by the other driver are the direct result of that breach, which could make the at-fault driver liable for negligence.

Comparative Negligence

The majority of states use a form of comparative negligence when weighing parties’ fault in tort cases. This method gives each party a percentage of fault and then compares the degrees of fault.

• Pure comparative negligence permits recovery regardless of the victim’s percentage of fault.
• Modified comparative negligence (the most common approach) allows recovery up to a certain degree of fault.

Some modified comparative negligence states follow a “50% rule.” There, you can recover damages as long as you are found either equally or less at fault than the other party. Other states use a “49% rule,” where recovery is limited to parties who are less than 50% at fault.

Both systems reduce the plaintiff’s recovery by their percentage of fault. For example, if you were awarded $100,000 in damages but your degree of fault was 20%, you’d still get $80,000.

However, a few states do not use comparative fault. Instead, they bar plaintiffs from recovering damages if they are found at all responsible for their injuries.

Contributory Fault States

Four states and the District of Columbia use contributory fault when awarding damages. Under this method, a plaintiff cannot recover if they are even 1% responsible for their injuries. This method comes from common law and case law, and has its roots in British common law. Whether the states have codified the rule or not, the basic rule is the same.

Alabama

Alabama does not have a statute for contributory negligence. Instead, Alabama’s Rules of Civil Procedure make “contributory negligence” an affirmative defense. A defendant may present evidence that the plaintiff’s negligence contributed to the accident in response to a legal complaint.

Alabama’s rule is a complete bar to recovery, meaning that if a defendant prevails, the plaintiff cannot recover damages.

But a plaintiff has some legal arguments available to them:

• There was a last clear chance: If the plaintiff was in a dangerous situation, and the defendant was aware that they could have avoided the harm and did not (the last clear chance), then the plaintiff is not at fault. An example is someone who is jaywalking. If a driver has time to safely stop and avoid a collision, then the jaywalker’s negligence in crossing in the middle of the street is offset by the driver’s “last clear chance.”

• Wanton misconduct: Contributory negligence does not excuse wanton, malicious, or intentional harm

One notable exception to the Alabama contributory negligence rule is product liability claims. Alabama standards for strict liability are higher for manufacturers in defective product cases.

Maryland

Maryland’s contributory negligence rule comes from case law, with cases reaching as far back as 1847 (Irwin v. Spriggs, where a gentleman fell into a hole which the defendant argued he should have seen).

Like other jurisdictions that follow contributory negligence, Maryland’s rule requires defendants to show that a plaintiff’s own negligence helped cause their accident. Maryland follows the “last clear chance” doctrine for plaintiffs to refute a negligent defendant’s claim.

Appeals have gone to Maryland’s courts twice in efforts to overturn the state law. The courts have rejected the request both times. Maryland’s highest court believes that a legislative change, rather than case law, must update contributory negligence in the courts.

North Carolina

North Carolina’s statute follows the common-law definition of contributory negligence and bars recovery if the injured party bears any responsibility for their own injuries. Contributory negligence is an affirmative defense. The defendant must prove the claimant’s actions contributed to the accident.

In North Carolina, the defendant must show causation by the plaintiff. In other words:

• The plaintiff’s negligence was a “cause in fact” of the accident
• The plaintiff’s injury was a reasonably foreseeable result (proximate cause) of their actions

For instance, if the plaintiff makes an illegal left turn, the accident would not have occurred “but for” their unlawful turn. It is reasonably foreseeable that the plaintiff could suffer an injury in such an accident. A jury could find the plaintiff partially responsible in this personal injury case. In North Carolina, that would be enough to prevent them from receiving a damages award.

North Carolina uses the “last clear chance” doctrine to soften the impact of contributory negligence. Courts also use the “proximate cause” doctrine. If a plaintiff’s injury was not a reasonably foreseeable result of their negligent behavior, then contributory negligence may not apply.

As in other states, contributory negligence does not apply to intentional torts, gross negligence, or wanton or malicious misconduct.

Virginia

Virginia’s contributory negligence rule comes from case law. The initial case, Baskett v. Banks (1947), established that “no person is entitled to recover from another for damages which have been occasioned by his own act or his own neglect.”

In simple terms, an injured person cannot recover damages if they caused their own injury.

In addition to the “last clear chance,” Virginia statutes make a specific exception for employees of “common carriers,” primarily commercial railroads.

Virginia’s Supreme Court has held that “reasonable minds could differ” as to whether a plaintiff contributed to their own injuries, so awards in personal injury claims rest with fact-finders like judges and juries.

District of Columbia

Washington, D.C., generally follows the contributory negligence rule. However, it has a significant exception for certain types of motor vehicle accidents. The District of Columbia Code limits contributory negligence for cases involving “pedestrians or vulnerable users” of highways.

This provision uses a modified comparative negligence standard for pedestrians and cyclists involved in a motor vehicle collision. The rule holds that individuals are likely to suffer more serious injuries in an accident and should have some ability to recover damages. Under the rule, pedestrians can recover if they are 50% or less at fault in the accident.

For example, if a cyclist rides outside a bike lane and is hit by a driver who is swerving to make an illegal turn, the cyclist can still recover damages.

Washington, D.C., also uses the “last clear chance” doctrine for plaintiffs who wish to counter defendants’ claim of contributory negligence.

Get Legal Advice about Contributory Negligence

While the strict rule of contributory negligence is the general standard for personal injury claims in these jurisdictions, several important exceptions may apply. And the doctrine isn’t limited to traffic accidents. In medical malpractice lawsuits, defendants can present evidence of a patient’s own negligence, such as ignoring a doctor’s instructions. In product liability claims, a defendant might argue that the consumer’s misuse of the product contributed to the injury.

If you have a personal injury claim and live in one of these four states or the District of Columbia, it is important to work with a personal injury lawyer. An experienced attorney can increase your chances of recovering damages and minimizing any fault in your case.

FindLaw’s directory of personal injury attorneys can help you get started. There, you can search for attorneys by state, city, reviews, and other important criteria.