Contributory and comparative negligence are legal rules used in personal injury cases. Both rules apply when an injured person shares some responsibility for an accident.
The key difference involves the effect of the plaintiff’s fault. Contributory negligence can prevent all recovery. Comparative negligence usually reduces compensation based on the plaintiff’s percentage of fault.
The law varies by state. Therefore, the same accident may produce different results in different jurisdictions.
What Is Contributory Negligence?
Contributory negligence is a strict fault rule. It can prevent a plaintiff from recovering damages when the plaintiff contributed to the accident.
Even a small amount of fault may bar the entire claim. For example, a plaintiff who is 1% responsible may recover nothing.
Consider a pedestrian who crosses a street without checking traffic. A distracted driver then strikes the pedestrian.
A jury may find the driver 90% responsible. It may assign the remaining 10% to the pedestrian.
Under a traditional contributory negligence rule, the pedestrian may recover nothing. The result applies even though the driver was far more responsible.
Alabama, Maryland, North Carolina, Virginia, and the District of Columbia generally follow contributory negligence. Limited exceptions may apply in some jurisdictions.
What Is Comparative Negligence?
Comparative negligence divides fault among the parties. The plaintiff’s compensation is reduced by the plaintiff’s percentage of responsibility.
Suppose a plaintiff proves $100,000 in damages. A jury finds the plaintiff 25% responsible.
The plaintiff’s award would be reduced by $25,000. The remaining recovery would be $75,000.
Her Lawyer’s guide to comparative negligence explains how courts and insurers assign fault in greater detail.
There are three main forms of comparative negligence:
- Pure comparative negligence
- Modified comparative negligence
- Slight-gross comparative negligence
Pure Comparative Negligence
Pure comparative negligence allows recovery at almost any level of fault. The plaintiff’s award is reduced by the assigned percentage.
A plaintiff who is 80% responsible may still recover 20% of the damages. A plaintiff who is 99% responsible may recover the remaining 1%.
California follows pure comparative negligence. The California Supreme Court adopted this system in Li v. Yellow Cab Co. It replaced the state’s former contributory negligence rule.
Assume a California plaintiff suffers $50,000 in damages. The plaintiff receives 60% of the fault.
The plaintiff may still recover $20,000. That amount represents the 40% caused by the other party.
Pure comparative negligence does not guarantee payment. The plaintiff must still prove negligence, causation, and damages.
Modified Comparative Negligence
Modified comparative negligence uses a fault threshold. A plaintiff may recover only when their responsibility remains below that limit.
There are two common versions.
The 50% Bar Rule
Under a 50% bar rule, the plaintiff must be less than 50% responsible.
A plaintiff who is 49% at fault may recover 51% of the damages. A plaintiff who is exactly 50% responsible cannot recover.
This rule is sometimes called the “not as great as” approach.
The 51% Bar Rule
Under a 51% bar rule, the plaintiff may recover when they are 50% or less at fault.
A plaintiff who is exactly 50% responsible may recover half of the damages. A plaintiff who is 51% responsible cannot recover.
This rule is sometimes called the “not greater than” approach.
The difference becomes important in an evenly divided case. A 50% finding permits recovery under one system but not the other.
Florida now follows a modified comparative negligence rule for most negligence cases. It generally bars recovery when the plaintiff is more than 50% responsible.
Slight-Gross Comparative Negligence
South Dakota uses a less common system. It compares whether the plaintiff’s negligence was slight against the defendant’s negligence.
The plaintiff may recover when their negligence was slight in comparison. The award is then reduced by the plaintiff’s responsibility.
The law does not create a simple 50% or 51% cutoff. Courts examine the parties’ conduct in each case.
South Dakota’s statute expressly uses the slight-versus-gross comparison.
Comparative vs. Contributory Negligence Example
Assume a driver runs a red light and causes a collision. The injured driver was also traveling above the speed limit.
A jury awards $100,000 in damages. It finds the injured driver 10% responsible.
The result depends on the jurisdiction:
- Under contributory negligence, the plaintiff may recover nothing.
- Under pure comparative negligence, the plaintiff may recover $90,000.
- Under modified comparative negligence, the plaintiff may also recover $90,000.
- Under the slight-gross rule, the result depends on how the conduct compares.
This example shows why the governing state law matters. A small fault percentage can change the entire result.
How Is Fault Determined?
Insurance companies often assign fault while investigating a claim. A judge or jury may decide fault when the case goes to court.
Relevant evidence may include:
- Police or incident reports
- Photographs and video
- Witness statements
- Vehicle damage
- Medical records
- Traffic citations
- Expert opinions
- Statements from each party
The factfinder considers whether each person used reasonable care. It must also decide whether the conduct contributed to the injury.
An insurer’s decision is not always final. A plaintiff may challenge the assigned percentage with additional evidence.
Does California Use Contributory Negligence?
No. California uses pure comparative negligence.
A partially responsible plaintiff may still recover damages. However, the award is reduced according to the plaintiff’s fault.
Suppose a California jury finds a plaintiff 70% responsible. The defendant receives the remaining 30%.
The plaintiff may recover 30% of the proven damages. The plaintiff’s high fault percentage does not automatically bar the claim.
Negligence Claims Against Government Entities
Special rules may apply when the defendant is a city or another public entity. These cases often require an administrative claim before a lawsuit may begin.
Deadlines can be much shorter than ordinary personal injury deadlines. Missing the claim deadline may prevent the lawsuit from moving forward.
Her Lawyer explains how to sue a city for negligence, including California’s government claim process.
FAQs About Contributory and Comparative Negligence
What is the main difference?
Contributory negligence may bar recovery after any plaintiff fault. Comparative negligence usually reduces damages according to fault.
Can a plaintiff recover when mostly responsible?
It depends on the state. Pure comparative negligence may permit recovery. Modified systems often bar the claim after a set threshold.
How is comparative negligence calculated?
The total damages are multiplied by the percentage assigned to the other party.
For example, a plaintiff has $20,000 in damages and is 25% responsible. The plaintiff may recover $15,000.
Who determines the percentage of fault?
Insurance adjusters may assign fault during settlement discussions. A judge or jury may decide the issue during litigation.
Can the parties choose which rule applies?
Usually not. The governing jurisdiction determines the applicable negligence rule.
Choice-of-law disputes can arise when an accident involves several states. An attorney can evaluate which state’s law controls.
Speak With a California Personal Injury Attorney
Fault disputes can greatly affect a personal injury claim. A small percentage may reduce the available compensation.
Her Lawyer, A Professional Law Corporation, is a California law firm founded by David Hakimfar, Esq. Contact Her Lawyer to request a consultation about a negligence claim.