Contributory and Comparative Negligence

Accidents take place everyday and people are injured and property is damaged. When accidents happen, one of the first questions people typically ask is "Who was at fault in the accident?" 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.

If a guy in a car hits a woman that is crossing the street, who is at fault? What if that woman who was crossing the street didn't check traffic or heed the warning of the do-not-cross sign of the nearby streetlight. Who is at fault in this situation? It then becomes a bit more complex which begins when the injured party asserts a negligence claim against the wrongdoer. The defendant (the person sued) may then assert a contributory negligence claim against the plaintiff (the person bringing the lawsuit); in effect stating that the injury occurred, entirely or in part, as a result of the plaintiff's own actions.

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. Deciding who is at fault can be rather complex. An attorney, experienced in dealing with negligence and contributory negligence, can help sort through the problem and will work for a fair settlement that reflects both parties' responsibility for the injury.

The person whose negligence caused the accident typically pays for the resulting damage. Throughout the United States, there are four systems used in establishing damage awards: pure contributory negligence, pure comparative negligence, and modified comparative negligence – 50% bar rule, and modified comparative negligence – 51% bar rule. In the past, if two people were in an accident, the injured person could only recover for his/her injuries and damages if they did not contribute to the accident in any way.

For example, if Jody and Pete were in an accident where Dave was injured, and Dave was only 5% at fault, he would recover nothing. This method of calculating damages is still followed in states with a pure contributory negligence system. Currently, only five states, including the District of Columbia, follow the pure contributory negligence rule. In a comparative negligencesystem, the injured party may still recover some of his or her damages even if he or she was partially to blame for causing the accident. In states using a comparative negligence system, a jury or judge determines the proportion of fault to be assigned to each responsible party.

Presently, 13 states follow a pure comparative negligence system and 33 follow a modified comparative fault system. A pure comparative negligence system assigns a percentage of faults to each responsible party and then apportions the damage award accordingly. A modified comparative fault system assigns a percentage of faults to each responsible party and then apportions the damage award accordingly.

Please contact us if you or a loved one was a victim of medical malpractice.