What Is Comparative Negligence?

After a car accident, insurance companies compare information to determine which driver caused the crash. Determining the amount of fault in a collision helps establish the award and the cause of the accident.

It’s very rare that one person is totally at fault in an accident. Although one driver is primarily at fault, the other driver may share some responsibility. Sometimes a third party can be partially responsible, or other factors may intervene. For instance, one driver may have been speeding while the other was texting, and the accident happened after both slid on an icy road.

Assigning blame in an accident is known as comparative negligence. The theory of comparative negligence allocates a percentage of fault in an accident and helps insurers and courts assess the plaintiff’s damages.

Types of Comparative Negligence

After an accident, the plaintiff must show that the other driver’s negligence caused their injuries. Negligence means proving four elements:

• The other driver had a duty or responsibility to the plaintiff
• The other driver breached or violated that duty in some way, such as speeding or running a red light
• The breach of duty caused the plaintiff’s injuries and was directly responsible for the accident
• The plaintiff must suffer actual damages caused by the accident, not potential or hypothetical injuries

Comparative negligence laws determine what percentage of negligence each party contributed to the accident. Depending on the state’s laws, the plaintiff’s negligence can either reduce their award or bar recovery completely.

Pure Comparative Negligence

Thirteen states, including California, Florida, and New York, follow a pure comparative negligence rule. In a pure comparative negligence state, the percentage of fault reduces the claimant’s award, no matter what that is. Under this system, it is possible to be 90% at fault for an accident and still recover 10% of your damages.

Let’s use an example: You’re in an accident, and it’s determined you were 30% at fault. You file a personal injury claim, and the award is $100,000. In a pure comparative negligence state, you would recover $70,000 ($100,000 – 30% = $70,000).

Modified Comparative Negligence

Modified comparative negligence jurisdictions fall into two categories:

• The “50% rule” lets plaintiffs recover if they are 50% or less responsible for the accident. Colorado, Georgia, and Utah follow this type of modified comparative negligence.
• The “51% rule” allows recovery up to 50% liability, but bars recovery if the plaintiff’s negligence is more than 51%. Texas, Vermont, and West Virginia use this type of modified comparative negligence.

Under both jurisdictions, the degree of fault limits the plaintiff’s recovery. For instance, in Texas, if you are 40% responsible, you can recover 60% of your damages. If you are 51% liable, you are not eligible to recover any damages.

Pure Contributory Negligence

The pure contributory negligence rule prevents injured parties from recovering damages if they are even 1% liable for an accident. Four states (Alabama, Maryland, North Carolina, and Virginia) and the District of Columbia use this very strict rule.

In a contributory negligence state, make sure to gather all the evidence you can from the scene of the accident. You must show you have no liability in the accident to recover damages in your case.

Joint and Several Liability

In multi-car accidents, several parties can share liability for the accident. A three-car accident could show that each driver was partially responsible. In commercial vehicle accidents, the driver’s employer shares liability under the vicarious liability and respondeat superior theories.

Joint and several liability allows the plaintiff and the defendant to sue or “join” other parties who weren’t at the accident scene, but who had some responsibility for the accident.

Get Legal Advice From a Personal Injury Attorney Near You

Personal injury lawsuits have many nuances that depend on your state’s negligence rules. To maximize the amount of damages you can recover, consider speaking with a personal injury attorney in your state. They can explain how comparative negligence works in your state, show you what effect it will have in dealing with your insurance company, and stand with you if you need to file a lawsuit.