Comparative & Contributory Negligence

When an event causes injuries, one of the first questions on most people's minds is one of blame: "Whose fault was it?" All states follow principles of comparative fault. When multiple parties are alleged to be at fault, the jury will allocate responsibility to all parties claimed to be at fault, as well as any other responsible people. But from whom can the plaintiff actually collect damages? Different states follow different rules regarding "joint and several liability."

In states that follow the traditional joint and several liability rule, each tortfeasor is liable for all of the plaintiff's damages, regardless of his or her degree of fault. Generally, in states that do not follow the doctrine of joint and several liability, the plaintiff can only recover from any given defendant according to that defendant's percentage of fault.

Some defendants are able to negate an element of the plaintiff's case. When a defendant is unable to negate an element of the plaintiff's case, he or she may raise an affirmative defense of either comparative negligence or contributory negligence against a plaintiff's negligence lawsuit. This defense can reduce the defendant's exposure by reducing the plaintiff's recovery according to the plaintiff's percentage of fault, or by barring recovery altogether in some cases.

Comparative Negligence

States that follow comparative negligence can use one of roughly three rules. The first type of comparative negligence is "pure comparative negligence." This doctrine, followed in states such as Alaska and California, allows a plaintiff to recover damages from the defendant minus his or her percentage of responsibility. For example, if a plaintiff's total damages are $100,000, and the plaintiff is 25% at fault, the plaintiff can recover $75,000 of the damages and will be responsible for $25,000. Even if the plaintiff is 99% responsible for the accident, he or she can recover 1% of the damages.

The second two types of comparative negligence are both "modified comparative negligence." In some modified comparative negligence states, such as Colorado and Maine, a plaintiff will not recover if the jury determines he or she is equally responsible (50%) or more for an accident. In other modified comparative negligence states, such as Hawaii and Iowa, a plaintiff will not recover if he or she is found more responsible (51% or more) than the defendant. There may be variations on this rule. 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."

Contributory Negligence

In a contributory negligence state, the plaintiff is barred from recovering if he or she acted negligently and contributed to the accident at all. 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.