Comparative Versus Contributory Negligence

Degree of Fault Determines Damages

Auto accident involving two cars

Fault is a key issue when someone is injured in an accident and sues another party for damages. In some cases, the defendant may contend that the plaintiff's own negligence contributed to his injury. When responsibility for an accident is in question, courts may determine fault based on either of two legal doctrines: contributory negligence or comparative negligence.

Who Was At Fault?

When two or more parties are involved in an accident that results in injuries, the parties may disagree as to who was at fault. Consider the following example.

It's a snowy morning in late October and Ellen is driving to a business meeting in a car registered to Elite Engineering, the company she owns. Ellen wasn't expecting snow for another month and has not yet installed winter tires on her car. She is approaching an intersection with four-way stop signs and steps on the brake pedal. To Ellen's dismay, the car skids on the slippery road and slides into the intersection. At the same moment, Jeff enters the intersection from Ellen's left, and his sedan collides with Ellen's car.

Ellen isn't hurt but Jeff sustains a head injury.

Jeff files a lawsuit against Elite Engineering for bodily injury. He claims that Ellen is liable for his injury because she failed to stop at the stop sign. Jeff also argues that Ellen could have avoided the accident had she installed winter tires on her vehicle before the snowstorm occurred. Ellen counters that Jeff contributed his injury because he was looking at his phone when he entered the intersection. Jeff might have avoided the collision had he not been driving distractedly.

Contributory and Comparative Negligence

Both the contributory and comparative negligence doctrines affect a plaintiff's ability to collect damages for an injury to which he or she has contributed. State laws determine which of these doctrines applies. The law may be a statute (written law) or a precedent (prior court decision).

1. Contributory Negligence

Under the theory of contributory negligence, a person is prohibited from recovering any damages if his own negligence contributed to the injury. Recovery is barred even if the plaintiff was only slightly responsible for the injury. In the scenario described above, Jeff would not be entitled to damages if Ellen could show that he was even 1% responsible for his injury.

Before workers compensation laws were enacted, employers could use the doctrine of contributory negligence to fend off lawsuits by injured employees. They were usually successful since few employees could prove that their injuries were solely the fault of the employer.

Nowadays, contributory negligence is generally considered too harsh. It has been abandoned in all but a handful of states.

Because contributory negligence is so harsh, only a few states still use it as a guiding principle.

2. Comparative Negligence

Most states have adopted the doctrine of comparative negligence. Under this theory, a person's compensation for an injury is proportionate to his degree of liability. An individual may be eligible for damages even if his negligence contributed to his own injury. There are two types of comparative negligence rules: pure and modified.

Pure Comparative Negligence

About a quarter of the states in the U.S. follow the doctrine of pure comparative negligence. In these states, a person is eligible for compensation only to the extent he or she was not responsible for the injury. For example, suppose that a court finds Jeff 25% responsible for his head injury. The court would have awarded him $50,000 if he hadn't been using his phone while driving. Because he was distracted by the phone, the court reduces his award by 25%, his proportionate responsibility. He receives only $37,500.

One main drawback of pure comparative negligence is that it allows a person to recover damages for an injury for which he was largely responsible. Based on this theory, Jeff could recover 1% of the $50,000 damages award ($500) even if he was 99% responsible for his injury. To address such situations, many states have adopted a doctrine called modified comparative negligence.

Modified Comparative Negligence

About two-thirds of the states have adopted a modified comparative negligence rule in which damages are awarded only for that portion of an injury not attributed to the plaintiff. Compensation is allowed only if a person's culpability does not exceed a specified threshold, typically 50% or 51%.

A majority of states in the U.S. have adopted a principle based on modified comparative negligence.

For example, suppose that Jeff sues Elite Engineering in a state that has a modified comparative negligence law with a threshold of 50%. This means an injured person can recover damages if he or she is less than 50% responsible for the injury. If a court finds Jeff responsible for 40% of his injury, Jeff will be eligible to receive 60% of the damages he would have received had he not contributed to his injury. However, if the court determines Jeff is 60% responsible for his injury, Jeff will not be eligible for damages since his degree of responsibility exceeds the 50% threshold.