Contributory and Comparative Negligence

Accidents take place everyday -- people are injured and property is damaged. When accidents happen, one of the first questions people typically ask is: "Who was at fault?" The concepts of contributory and comparative negligence address this question and provide a way to allocate fault between parties when the answer to this question is not entirely clear. As the terms imply, a party may contribute to an act of negligence or be comparatively negligent for their own injuries.

This article discusses contributory and comparative negligence and how they come into play in an injury claim.

Overview of Negligence in Accident or Injury Claims

Negligence is a term used to characterize conduct that creates an unreasonable risk of harm to others. If you're negligent, and your negligence causes another person to become injured, then you're legally responsible for paying damages. In order to prevail on a negligence claim, the party will have to prove the following elements:

The defendant owed a duty toward the plaintiff (i.e. reasonable care for other's safety)
The defendant failed to act in a reasonable way, or breached its duty (for example, a driver was reckless or intoxicated)
The defendant's breach was the actual cause of another's injuries
The defendant's breach was the proximate cause of the injuries (the defendant should have known that the breach would cause injury)
The plaintiff suffered actual injuries, for which they may claim damages

Contributory Negligence

The concept of contributory negligence is used to characterize conduct that creates an unreasonable risk to one's self. The idea is that an individual has a duty to act as a reasonable person. When a person does not act this way and injury occurs, that person may be held entirely or partially responsible for the resulting injury, even though another party was involved in the accident.

For example, Dave, a motorist, strikes Sally, a pedestrian who was crossing the street without carefully checking traffic or heeding the warning of the do-not-cross sign of the nearby streetlight. Who's at fault in this situation?

After an injured party files a negligence claim, the defendant (the person sued) may then assert a contributory negligence claim against the plaintiff (the person bringing the lawsuit), effectively stating that the injury occurred at least partially as a result of the plaintiff's own actions. This would be a contributory negligence counterclaim, a common defense to negligence claims.

If the defendant is able to prove the contributory negligence claim, the plaintiff may be totally barred from recovering damages or her damages may be reduced to reflect her role in the resulting injury. The pedestrian in the example, Sally, probably would be considered at least partially at fault (and therefore liable for contributory negligence) for carelessly crossing the street.

Comparative Negligence

Most states have now adopted a comparative negligence approach to contributory negligence, wherein each party's negligence for a given injury is weighed when determining damages.

Traditionally, the courts viewed contributory negligence as a total bar to the recovery of any damages. Under the traditional view, if a person had contributed to the accident in any way, the person was not entitled to compensation for his or her injuries. In an attempt to reduce the harsh, oftentimes unfair outcomes resulting from this approach, most states have now adopted a comparative negligence approach.

There are two approaches to comparative negligence:

Pure Comparative Negligence: Plaintiff's damages are totaled and then reduced to reflect their contribution to the injury. For example, if a plaintiff was awarded $10,000 and the judge or jury determined that the plaintiff was 25% responsible for their would be awarded $7,500.
Modified Comparative Negligence: This is the most common approach. Plaintiff will not recover if they're found to be either equally responsible or more responsible for the resulting injury. In other words, in order to recover damages, the plaintiff must not be more than 50% at fault for the resulting injury.

Get Legal Help With Your Contributory or Comparative Negligence Claim

If you've been sued for negligence but believe the plaintiff is at least partially at fault, you may be able to file a counterclaim for contributory or comparative negligence. Consider having a personal injury attorney licensed in your state review the merits of your claim.