Comparative vs. Contributory Negligence

ISTOCK IMAGE ID 33782698When a personal injury lawsuit involves negligence, it is common for fault to be shared to some extent by both parties. For example, take a car and motorcycle accident where the motorcyclist suffers injury to the head or neck. The driver would be considered negligent if they were speeding; however, if the motorcyclist was not wearing a helmet, they could be deemed negligent too, and partially responsible for their head or neck injury. In cases like these, the law makes decisions using either contributory or comparative negligence.

Contributory negligence is used to describe conduct that creates an unreasonable risk to one’s self. Contributory negligence is applied with the idea that a person has the obligation to act as a reasonable and prudent person. If a person fails to act as a reasonable and prudent person would, and this carelessness leads to injury, this person may be held entirely or partially responsible for the resulting injury, even if another party was involved in the accident.

ISTOCK IMAGE ID 29544202Under traditional contributory negligence rules, an individual who was found to have been even somewhat negligent in causing an accident was barred from recovering any compensation for their injuries. This meant that, if a motorcyclist injured in a car crash was found to be partially negligent in their own injury, they would not be able to recover any damages from the driver. Traditional contributory negligence, now known as “pure” contributory negligence, is used in a minority of states today.

Majority of states today, including California, use comparative negligence rules. There are two approaches to comparative negligence. The first is known as “pure” comparative negligence, and it is the most flexible way to determine who is at fault. With pure comparative negligence, the plaintiff’s damages would be totaled, then reduced in accordance with their level of negligence. For instance, if a plaintiff was awarded $10,000 in damages, and the judge determined the plaintiff to be 25 percent responsible for their injury, then the plaintiff would be awarded $7,500. This rule would apply even if the plaintiff was mostly responsible for their injury; if the plaintiff was 90 percent at fault, and the other party was only 10 percent at fault, the plaintiff would still be entitled to recover 10 percent of the damages.

ISTOCK IMAGE ID 14648132With the other approach to comparative negligence, the plaintiff is only allowed to be compensated under comparative negligence rules if they are less at fault in causing their injury than the other party. This approach, known as “modified” comparative negligence, allows proportional recovery only if the person seeking to recover damages was less than a certain percentage at fault for their own injuries. Typically, they must be less than 50 percent at fault for their own injuries. States differ in their rules regarding percentages and modified contributory negligence. In some states, the plaintiff cannot recover damages if they are equally (50 percent) responsible, while in other states the plaintiff is only unable to recover damages if they are more (51 percent) responsible for their injury.


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