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The difference between comparative negligence and contributory negligence turns on how responsible you can be for your injuries before you are barred from recovering compensation for them in a personal injury claim.
Contributory negligence bars you from recovery if you were at fault at all. Comparative negligence rules generally reduce your recovery by the extent or percentage of your fault. They resolve shared fault situations.
What is shared fault in a personal injury case?
Shared fault is when the victim was partly to blame for the accident that hurt them.
For example: Carrie pulls out of her driveway without looking. Matt is speeding and not paying attention. They collide in a car accident.
Many, if not most, accidents involve shared fault. Because the victim was partly to blame for their injuries, it would be unfair to make the other person pay for all of their losses. State tort laws have come up with 2 basic ways to resolve this dilemma:
- contributory negligence, and
- comparative negligence.
Each of these state laws requires the jury hearing the personal injury case to assign a percentage of fault to the:
- victim, and
- defendant(s).
The plaintiff’s fault will then reduce the total damages receivable in the plaintiff’s recovery.
Because the plaintiff’s negligence can reduce their recovery, it is essential for victims to establish an attorney-client relationship with a personal injury attorney from a reputable law firm. With a lawyer’s representation and legal advice, victims can maximize the value of their insurance claim and personal injury case.
How does contributory negligence work?
Contributory negligence works by barring the victim from recovering anything if they contributed to their injuries at all. Even if the victim was 1 percent at fault, contributory negligence will prevent them from recovering any compensation.
For example: In Matt and Carrie’s car accident, Matt suffers $50,000 in legal damages. He sues Carrie. The jury finds that Carrie was 75 percent responsible because she pulled out into the roadway recklessly. However, Matt was speeding and was distracted, so the jury finds him 25 percent at fault. In a state that uses contributory negligence, Matt would not recover any compensation for his losses.
Contributory negligence has a reputation for producing harsh results. It is the worst for victims of accidents, and the best for insurance companies that would have to pay settlements or verdicts against their policyholders. For this reason, very few states still use the contributory negligence system. Only 4 states still follow it:
The District of Columbia also uses contributory negligence rules for most types of accidents.[5] However, there are some exceptions under a new law.[6]
Generally, contributory negligence is an affirmative defense. It is up to the defendant to prove that the victim was partly to blame for his or her injuries.[7]
How does comparative negligence work?
Comparative negligence, also known as comparative fault, works by reducing the victim’s compensation by his or her percentage of fault. There are 2 subtypes of the comparative negligence doctrine:
- pure comparative negligence, and
- modified comparative negligence.
The vast majority of states in the U.S. use one of these types of comparative negligence laws. Many have passed statutes to adopt the rule. Others have adopted comparative negligence through the common law process.
Pure comparative negligence
Under the legal doctrine of pure comparative negligence, the victim’s compensation is reduced by their percentage of fault, no matter how at fault they are.
For example: In the car accident between Carrie and Matt, Carrie suffers $100,000 in legal damages. She sues Matt. At trial, the jury decides that Carrie was 75 percent at fault for the accident. Even though Carrie suffered $100,000 in damages, they would be reduced by 75 percent. Carrie would still recover $25,000.
Pure comparative negligence is the best rule for victims of accidents. They can collect damages even if they were primarily at fault.
The following 12 jurisdictions use pure comparative negligence rules:
- Alaska,[8]
- Arizona,[9]
- California,[10]
- Florida,[11]
- Kentucky,[12]
- Louisiana,[13]
- Mississippi,[14]
- Missouri,[15]
- New Mexico,[16]
- New York,[17]
- Rhode Island,[18] and
- [19]
Modified comparative negligence
Under modified comparative negligence rules, the victim’s recovery is reduced by their percentage of fault, but is barred if they were more than half at-fault.
For example: Carrie sues Matt for the accident. The jury finds her to be 75 percent at fault for it. Carrie will be barred from recovering anything because she was primarily responsible for the crash.
All states that do not use contributory or pure comparative negligence use modified comparative negligence, except for South Dakota. This means that 33 states use modified comparative negligence.
Of these states, there is a disagreement as to whether the victim is barred from recovering compensation if he or she was:
- half at-fault for the accident, or
- more than half at-fault.
The difference is whether victims can recover compensation if they shared equal fault for the accident, or 50 percent responsibility. While the difference sounds trivial, many juries assign equal fault to each party when it is unclear who was responsible for an accident.
For example: Jade and Tom are both driving while distracted when they crash into each other. The jury finds that they were equally to blame for the accident.
The following are some of the states that bar victims from recovering compensation if they were at least equally at fault, or were at least 50 percent to blame:
On the other hand, the following are some of the states that prohibit victims from recovering compensation only if they were predominantly at fault, or at least 51 percent to blame:
- Illinois,[24]
- Massachusetts,[25]
- Michigan,[26]
- Nevada,[27]
- Oregon,[28]
- South Carolina,[29]
- Texas,[30] and
- [31]
Additionally, the District of Columbia uses this form of modified comparative negligence if the victim was in a pedestrian or motor vehicle accident and was a:
- pedestrian,
- bicyclist,
- motorcyclist,
- skateboarder, or
- user of a non-motorized scooter.[32]
What is the difference between contributory negligence and comparative negligence?
In states that use contributory negligence, accident victims can recover compensation only if they did not contribute any fault at all for their injuries. Even if they were as little as 1 percent at-fault, they will be barred from recovering any compensation in a personal injury claim.
In states that use comparative negligence, accident victims can recover compensation if, when compared to the defendant’s negligence, they were less responsible for their injuries. As long as the injured party was less than half at-fault, they can recover compensation.
In many states that use modified comparative negligence rules, victims can also recover if they were 50 percent at-fault.
In states that use pure comparative negligence rules, victims can also recover if they were predominantly at fault.
However, in all of these cases, the amount of damages that the victim can receive will be reduced by his or her percentage of fault.
How does this affect settlement negotiations?
Both comparative and contributory negligence require the jury in a personal injury trial to assign fault to the parties for the accident. However, the vast majority of personal injury claims are settled out of court. Nevertheless, shared fault rules influence these out-of-court settlements. During settlement negotiations, your personal injury lawyer and the insurance company will take your degree of responsibility into account. This will reduce the value of your case accordingly.
Are there any other forms of shared fault rules?
There is one state, South Dakota, which uses neither contributory nor comparative negligence rules. South Dakota uses the slight-gross negligence rule.[33]
This rule allows victims who contributed fault to their accident to recover compensation, but only if their share of fault was slight in comparison to the defendant’s share of fault.
What is the law in California?
California is a pure comparative negligence state. Victims can recover compensation for their losses in an accident, even if they were predominantly responsible for them. However, their share of recovery is reduced by their percentage of fault.[34]
[1] Alabama Rules of Civil Procedure Rule 8(c). See also Jackson v. Waller, 410 So.2d 98 (1982).
[2] Board of County Commissioners of Garrett County v. Bell Atlantic-Maryland, Inc., 695 A.2d 171 (1997).
[3] Muteff v. Invacare Corp., 721 S.E.2d 379 (2012).
[4] Ravenwood Towers, Inc. v. Woodyard, 419 S.E.2d 627 (1992).
[5] Wingfield v. Peoples Drug Store, Inc., 379 A.2d 685 (1977).
[6] Code of the District of Columbia 50-2204.52.
[7] See, e.g., Board of County Commissioners of Garrett County v. Bell Atlantic-Maryland, Inc., (supra note 2), at 181.
[8] Alaska Statute 09.17.060 – 09.17.080.
[9] ARS 12-2505.
[10] Li v. Yellow Cab Co., 13 Cal.3d 804 (1975).
[11] Florida Statutes 768.81.
[12] Kentucky Revised Statute 411.182.
[13] Louisiana Civil Code Annotated Article 2323.
[14] Mississippi Code 11-7-15.
[15] Gustafson v. Benda, 661 S.W.2d 11 (1983).
[16] Scott v. Rizzo, 634 P.2d 1234 (1981).
[17] New York Civil Practice Law and Rules 1411.
[18] Rhode Island General Laws 9-20-4.
[19] Revised Code of Washington 4.22.005.
[20] CRS 13-21-111.
[21] Georgia Code Annotated 51-12-33.
[22] Idaho Code 6-801.
[23] Utah Code 78B-5-818.
[24] 735 Illinois Compiled Statutes 5/2-1116.
[25] Massachusetts General Law Chapter 231 Section 85.
[26] Michigan Compiled Laws 600.2959.
[27] NRS 41.141.
[28] Oregon Revised Statutes 31.600.
[29] Nelson v. Concrete Supply Co., 399 S.E.2d 783 (1991).
[30] Texas Civil Practice and Remedies Code 33.001.
[31] Wyoming Statute 1-1-109.
[32] Code of the District of Columbia 50-2204.52.
[33] South Dakota Codified Laws 20-9-2.
[34] Li v. Yellow Cab Co., supra note 10.
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.