Contributory Negligence vs. Comparative Negligence – Understanding The Important Distinctions

It is a harsh reality that despite best precautions, accidents occur every day, injuring people and damaging property. In case an accident occurs, who was at fault is usually the first thought that comes to mind.

When there is a lack of clarity on this aspect, the doctrine of contributory and comparative negligence can help address this issue and offer a method to determine liability between the parties. These concepts help determine whether a victim may be a contributor to an act of negligence or relatively negligent for their injuries. 

Key Highlights of Negligence in Injury or Accident Claims

The term negligence is used to characterize actions that cause an unreasonable threat of harm to other people. If a person is negligent and their negligence causes injury to another individual, then the negligent party is liable under the law to pay damages to the victim. The plaintiff (individual filing the lawsuit) will have to prove the following aspects to win a negligence case:

  • The defendant (the person being sued) had a duty towards the plaintiff
  • The defendant did not act in a reasonable manner, or breached duty
  • The proximate cause of the injuries was the breach on the part of the defendant
  • The plaintiff experienced actual injuries, for which they may claim compensation

Contributory Negligence

Contributory negligence is a concept that is used to characterize conduct that causes an unreasonable risk to one's own person. This idea is based on the premise that a person has a duty to act in a reasonable manner. When an injury occurs due to a person acting irrationally, they may be held fully or partially liable for the consequent injury, although another party may be involved in the incident.

For instance, if John, a passenger vehicle driver, strikes Diana, a pedestrian who was trying to cross the road, without adequately assessing traffic or paying heed to the "do-not-cross" warning sign of the nearby streetlight, whose fault is it?

When an injured party files a claim citing negligence, the defendant may respond with a contributory negligence claim against the plaintiff. Such a claim effectively states that the injury resulted in, at least partly, due to unreasonable actions by the plaintiff. This would be referred to as a contributory negligence counterclaim, which is a commonly used defense in negligence lawsuits.

In case the defendant is successfully able to prove their claim of contributory negligence, the plaintiff may be unable to recover any damages, or their damages may be reduced in proportion to their role in the injury. For instance, Diana, the pedestrian mentioned above, would be considered at least partially responsible, and hence liable for contributory negligence, for casually crossing the road.

Comparative Negligence

Today, most states support a comparative negligence approach to contributory negligence. This means that the negligence of each party for a specific injury is weighed when determining liability.

Courts have traditionally considered contributory negligence to bar the recovery of any damages completely. The traditional view endorses that if an individual has contributed to an accident in any manner, they are not entitled to damages for injuries stemming from that incident. This approach has often resulted in draconian and unfair outcomes. Therefore, most states now take a comparative negligence approach.

Comparative negligence can have two approaches:

Pure Comparative Negligence

Nearly one-fourth of the states in the US follow the concept of pure comparative negligence, according to which an individual is entitled to compensation only to the degree that they were not responsible for the injury.

For instance, a court finds Tom 25 percent responsible for his head injury and would award him $40,000 in damages, if he had not been on his phone while behind the wheel. Due to him being distracted by the mobile, the court will reduce his award by 25 percent in proportion to his responsibility for the crash. In this case, he will receive only $30,000 in damages.

Modified Comparative Negligence

A modified comparative negligence approach has been adopted by around two-thirds of the states in the US. Under this rule, the plaintiff will only be awarded compensation for the portion of an injury that is not attributed to them. Damages are awarded only if the plaintiff’s culpability does not extend beyond a specified limit, usually 50 to 51 percent.

For instance, say Dave brings a lawsuit against XYZ Company in a state with a modified comparative negligence law stipulating a 50 percent threshold. In this case, Dave will be able to receive compensation if his responsibility for the injury is deemed to be below 50 percent.

If the court determines that Dave is responsible for 30 percent of his injury, he will be entitled to receive 70 percent of the compensation he would have been awarded had he not been a contributory factor to his own injury. But if a judge determines that Dave is 65 percent responsible for his injury, he will not be able to receive any compensation as the extent of his culpability exceeds the threshold of 50 percent.

Legal Help from Seasoned Personal Injury Attorneys

One of the few states that still follow contributory negligence in the US is North Carolina. Many times, insurance companies will try to persuade you to admit that you were at least partially at fault for the accident. A qualified personal injury lawyer at Shapiro, Appleton & Washburn can guide you every step of the way to ensure that you get fair compensation for your injuries. For a detailed consultation with an experienced accident claim lawyer, call today at 800-752-0042.

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Richard N. Shapiro
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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