Contributory Negligence vs. Comparative Negligence

Find out whether your state follows contributory negligence or comparative negligence laws and how that can affect your case.

The term “negligence” covers a wide variety of personal injury lawsuits filed in the United States. A negligence claim can arise from a car crash, a slip-and-fall accident in a department store, or a medical procedure gone wrong.

The common thread among these cases is that the person who was allegedly negligent (the defendant) carelessly injured the plaintiff.

Whether the defendant was careless, though, is not the only question that matters. Courts deciding negligence cases also care whether the plaintiff was careless in any way. In some states, known as contributory negligence states, the fact that a plaintiff was negligent at all can stop your lawsuit in its tracks.

Most other states, called comparative negligence states, still inquire whether the plaintiff was negligent, but do not mandate the sometimes harsh results that the laws of contributory negligence states do.

Regardless of the state in which you file your negligence claim, you will have to deal with either contributory or comparative negligence laws.

This article will look at contributory negligence vs. comparative negligence laws and what they might mean for your personal injury case, whether you ultimately settle or go all the way to trial.

Contributory Negligence Laws: An Older and Harsher System

Woman texting while driving

The doctrine of contributory negligence maintains that if you bring an injury upon yourself, you can’t sue someone else for negligently causing it.

In other words, if the plaintiff has any responsibility in causing their own injury, contributory negligence states do not allow the plaintiff to recover personal injury damages from a negligent defendant.

An easy way to think about this is to imagine liability on a percentage basis. When a defendant is completely responsible for causing an injury, they have 100% responsibility. Under a pure contributory negligence legal scheme, a plaintiff who was even 1% responsible for their own injury could not recover a judgment from the defendant who was 99% responsible.

Imagine that you’re injured in a head-on car crash with a drunk driver who’s driving on the wrong side of the road. Your phone records show that, at the exact moment the drunk driver hit you, you were sending a text message to a friend. Whether or not you live in a state that bans cell phone use while driving, your behavior was unquestionably negligent.

Even though the other driver was drunk and violating the law, you were also being negligent. Your contributory negligence could therefore stop you from getting a judgment against the drunk driver.

Alabama, Maryland, North Carolina, and Virginia all currently have contributory negligence laws.

Washington, D.C. applies some contributory negligence rules, but to a lesser extent. Washington, D.C. does not apply these rules to a pedestrian or bicyclist who is in an accident with one or more motor vehicles so long as their negligence is less than everyone else’s.

Though few states apply these harsh rules, you should be aware of them. You never know where or how you will be injured, and if you fail to follow the law or use common sense in your behavior, you could be blocked from receiving compensation in a lawsuit.

Comparative Negligence Laws: A Modern, Flexible Approach

A lawyer sitting with a client in the courtroom

Most states have attempted to correct the unfairness that’s built into the contributory negligence approach. The more modern alternative embraced by these states is known as comparative negligence.

In a comparative negligence state, the fact that a plaintiff is partly responsible for their injury does not stop them from recovering against a negligent defendant.

For example, let’s return to the situation where you were involved in a collision with a drunk driver while texting on your phone. Even though you were texting on your phone, which may have even been illegal at the time of the crash, you can still possibly get a judgment against the other driver.

In other words, if the jury finds that the defendant is 85% responsible for an injury and the plaintiff is 15% responsible, the plaintiff can still get a judgment. Typically, though, the plaintiff can only recover 85% of their damages from the defendant.

(Some states have laws pertaining to joint and several liability that allow a plaintiff to recover the entirety of their damages from one responsible defendant of many, but this does not usually apply to the portion of an injury for which a plaintiff is responsible.)

Within the category of comparative fault states, there are different kinds of laws that affect how and whether you can recover in different circumstances.

1. Pure Comparative Fault

A pure comparative fault state, like California, is one in which you can recover a negligence judgment from a defendant even if they were only a little bit negligent. This is allowed even in cases where the plaintiff’s own negligence exceeds that of the defendant.

In terms of percentage, this means that a plaintiff who was 99% responsible for their own injury could sue and recover from a defendant that was 1% responsible. (That plaintiff, though, could only recover 1% of their damages from that defendant.)

Pure comparative fault laws can lead to a situation where a drunk driver could sue and recover some money from the person they hit because that driver was illegally texting on their phone at the time of the collision.

Pure comparative fault states include:

  • Alaska
  • Arizona
  • California
  • Florida
  • Kentucky
  • Louisiana
  • Mississippi
  • Missouri
  • New Mexico
  • New York
  • Rhode Island
  • Washington

2. Modified Comparative Fault

In a modified comparative fault state, a plaintiff can only recover a negligence judgment under certain circumstances. Some states require that the plaintiff be less than 51% responsible for their injury. In other words, if the plaintiff and defendant are equally at fault, then the plaintiff can get a negligence judgment against the defendant.

The less-than-51% states are in the majority, and include:

  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Indiana
  • Iowa
  • Massachusetts
  • Michigan
  • Minnesota
  • Montana
  • Nevada
  • New Hampshire
  • New Jersey
  • Ohio
  • Oregon
  • Oklahoma
  • Pennsylvania
  • South Carolina
  • Texas
  • Vermont
  • West Virginia
  • Wisconsin
  • Wyoming

A slight but crucial difference can be found in the less-than-50% modified comparative fault states. These states are similar to the 51% states, except if the plaintiff and defendant are equally to blame, then the plaintiff cannot get a negligence judgment against the defendant.

The less-than-50% states include:

  • Arkansas
  • Colorado
  • Georgia
  • Idaho
  • Kansas
  • Maine
  • Nebraska
  • North Dakota
  • Tennessee
  • Utah

3. South Dakota: A Unique Modified Comparative Fault State

Mount Rushmore National Memorial

The last state to discuss has a unique version of modified comparative fault. In South Dakota, a plaintiff can recover where they were only “slightly” negligent compared to the defendant.

This legal situation is not as clear at the other modified comparative fault states, but the South Dakota Supreme Court has offered some clarification.

In the case of Wood v. City of Crooks, the Court said that a plaintiff who was 30% responsible for his injury was more than slightly negligent. This decision is still vague and does not have the relative certainty of the rules from other states. It appears that the severity of South Dakota’s laws fall between contributory negligence and modified comparative negligence.

Contributory Negligence vs. Comparative Negligence: Know Your State’s Law

When you’ve been injured by negligence, it’s important to know the laws of the state where the injury happened. Your lawsuit could be much more difficult in some states than others. In pure comparative negligence states, the defendant could even counter-sue you for negligence to the extent of your own responsibility.

It is therefore important to educate yourself on the law and potential consequences of your negligence lawsuit. If you or a loved one has been injured due to the negligence of another, you should contact a qualified personal injury lawyer in your state for a free consultation and case evaluation.

Matthew Carter, Esq. has been a licensed attorney since 2004. He’s admitted to practice law in California and Nevada, where he was awarded the rating of AV – Preeminent. Matthew has successfully handled a variety of personal injury and wrongful death cases, as well as trials, appeals, and evidentiary hearings throughout state and federal... Read More >>


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