Contributory Negligence and Comparative Fault

Contributory Negligence and Comparative Fault

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Contributory Negligence

Contributory negligence is a common law tort rule. Plaintiffs can be barred from recovering for the negligence of others if they too were negligent in causing the harm. Contributory negligence has been replaced in many jurisdictions with the doctrine of comparative negligence.

In a jurisdiction that follows contributory negligence, a plaintiff who is at all negligent cannot recover, even if they establish the elements for a cause of action. For the purposes of contributory negligence, the degree of the plaintiff’s and the defendant’s respective negligence is irrelevant. Thus, a plaintiff who was 1% negligent will receive nothing from a defendant who was 99% negligent. The advantage of this all or nothing rule is that it does not require the courts to accurately determine the degree of blame each party shares for the harm. On the other hand, the application of contributory negligence can lead to outcomes society deems inequitable.

Comparative Negligence

Comparative negligence is a tort principle used by the court to reduce the amount of damages that a plaintiff can recover in a negligence-based claim. Comparative fault is assessed according to the degree of negligence each party contributed to the incident. Specifically, when an injured victim was partially at fault because of their own negligence, the court may assign a percentage of fault to both the injured victim and the defendant. For instance, the court may assigns 60% fault to the defendant and 40% to the plaintiff. The plaintiff therefore may only recover 60% of the damages, rather than the full.

There are two types of comparative negligence in the United States, as well as contributory negligence – pure comparative negligence and modified comparative negligence. As a result, damage awards can vary from state to state.

Pure Comparative Negligence

Under the pure comparative negligence rule, the state allows the plaintiff to claim damages for the 1% they are not at fault for. This is the case even when the plaintiff is 99% at fault. In other words, the amount of damages that the plaintiff can collect is limited based on the assigned fault determined by the court. Almost one-third of states follow this rule, including California, Florida, and New York.

In states that follow pure comparative negligence, such as Alaska and California, the plaintiff can recover damages from the defendant even if the plaintiff is partially at fault for the accident.

An example to illustrate how pure comparative negligence works: If the total damages amount to $100,000 and the plaintiff is found to be 25% at fault, the plaintiff can still recover $75,000 from the defendant. However, the plaintiff will be responsible for the percentage of fault attributed to them, in this case, $25,000.

Pure comparative negligence allows plaintiffs to recover damages even if they are predominantly responsible for the accident. Even if the plaintiff is 99% responsible for the accident, they can still recover 1% of the damages.

Modified Comparative Negligence

Two types of modified comparative negligence exist: 50 percent bar rule and 51 percent bar rule.

● Under the 50 percent bar rule: the plaintiff may not recover damages if they are found to be 50% or more at fault.

● Under the 51 percent bar rule: the plaintiff may not recover damages if they are assigned 51% or more of the fault.

The modified comparative negligence principle is followed by the majority of states. For example, in Michigan, if a plaintiff is 51% at fault, his or her economic damages are reduced, but his or her noneconomic damages are barred altogether.

South Dakota is the only state to follow the “slight/gross” negligence rule. In this system, the plaintiff’s and defendant’s respective degrees of fault are only compared when the plaintiff’s negligence is considered “slight,” and the defendant’s negligence is considered “gross.” The plaintiff is barred from recovery if his or her fault is more than “slight.”

Comparative & Contributory Negligence in Personal Injury Lawsuits

Fault and Liability in Cases where Injuries Occur

When an event results in injuries, people often want to determine who is at fault or to blame. All states adhere to principles of comparative fault, which means that when multiple parties are involved in an incident, the responsibility for the injuries is allocated among them based on their level of fault. In cases where multiple parties are claimed to be at fault, a jury determines the degree of responsibility each party bears for the injuries. Whether the plaintiff, the person bringing the legal action seeking damages, can actually collect compensation depends on the legal concept of joint and several liability.

Joint and Several Liability

Different states have different rules regarding joint and several liability. In jurisdictions that follow this concept, if multiple parties are found to be at fault, each party can be held liable for the full extent of the damages, regardless of their individual share of fault. This means that the plaintiff can potentially collect damages from any or all of the responsible parties, regardless of their specific degree of fault.

Traditional Joint and Several Liability

In states that adhere to this rule, each party found responsible for causing harm (tortfeasor) is liable for the full extent of the plaintiff’s damages. This is regardless of their individual degree of fault. Even if one party is minimally at fault compared to others, they can still be held fully liable for all damages.

States Without Joint and Several Liability

In states that do not follow this doctrine, the plaintiff can only recover from each defendant based on their percentage of fault. In other words, each defendant is only responsible for the portion of damages that corresponds to their level of fault.

Defendants have the opportunity to challenge the plaintiff’s case by raising affirmative defenses. Two common defenses mentioned here are comparative negligence and contributory negligence. The comparative negligence defense allows the defendant to argue that the plaintiff’s own negligence contributed to their injuries. If successful, this defense can reduce the defendant’s liability by assigning a percentage of fault to the plaintiff, thereby reducing the amount of damages the defendant must pay accordingly.

The contributory defense, similar to comparative negligence, involves the argument that the plaintiff’s own negligence contributed to their injuries. However, in some cases, contributory negligence can completely bar the plaintiff from recovering any damages if it’s proven that they were even slightly negligent.

A plaintiff can be barred from recovering for being 1% or more at fault for an accident. Historically, contributory negligence was the rule in all states, leading to harsh results. Many states developed and adopted comparative negligence laws. Today, the jurisdictions that still use contributory negligence are Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.

In a state that follows contributory negligence, fault can be a very challenging issue in a lawsuit. For example, if a plaintiff is speeding in her car and another car cuts her off, she will not be able to recover if the jury determines she is even 1% at fault for speeding. See Li v. Yellow Cab Co.13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975). The doctrine of contributory negligence is obsolete and should be replaced by a system of pure comparative negligence. This allows the responsibility for the costs arising from an accident to be divided among the parties in proportion to their respective degrees of fault. It would be unjust for a party to completely evade the consequences of its own reckless or careless actions.

In Li v. Yellow Cab Co, the case marked the shift in California from the traditional rule of contributory negligence to a system of pure comparative negligence, which is the prevailing rule in most jurisdictions now. The court determined that the purpose of the comparative negligence rule is to divide liability between the victim and any defendants held liable according to their relative responsibility for the harm.

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Justin Sterling, Esq. is a leading personal injury attorney and civil litigator.  Mr. Sterling is the founder of The Sterling Firm, a top-rated law firm with its original headquarters in Los Angeles, California. The Sterling Firm has a client base that stretches not only across the nation but also around the globe. We offer experienced and driven legal counsel for your matter.  We handle insurance claims and civil lawsuits, including those that arise from catastrophic and severe personal injury.

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