Understanding the Difference Between Contributory and Comparative Negligence

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In a car or trucking accident, contributory and comparative negligence are defenses that can sometimes be used to determine the degree of fault each driver has for the accident. They also affect how much financial responsibility each driver has for injuries resulting from the accident.

In an automobile or trucking accident lawsuit, the injured party typically alleges that the other driver’s negligence caused the accident. That other driver (the defendant) may, however, be able to show that the injured party (the plaintiff) also played a role in causing the accident by using a theory of comparative or contributory negligence. These defenses can reduce a plaintiff’s recovery or even bar it completely in certain instances.

Here’s a look at how comparative and contributory negligence operate:

Comparative negligence

Most states follow this rule that divides fault between the plaintiff and the defendant according to a percentage of fault. For example, if a judge or jury finds that the plaintiff is 40 percent at fault for the accident and the defendant is 60 percent at fault, the amount that the plaintiff can recover is reduced by 40 percent (the amount the plaintiff is at fault).

Some states employ a variation on comparative negligence. One of the most common variations is modified comparative negligence, which is followed by Pennsylvania. This means that the plaintiff can recover against any party who is more at fault than the plaintiff, but the recovery is reduced by an amount equal to the percentage of the plaintiff’s own liability. If the plaintiff is 51 percent or more at fault, however, recovering damages is not possible.

Contributory negligence

Contributory negligence, which is followed by a minority of jurisdictions (Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.) is harsher toward plaintiffs. Under contributory negligence, a defendant can avoid liability altogether if the person can prove that the plaintiff’s own negligence contributed to the accident. Thus, a plaintiff who is only 1 percent at fault for an accident can be completely barred from recovery. However, some of these states minimize this harsh rule by allowing a plaintiff to recover if the plaintiff can show that the defendant had the “last clear chance” to avoid the accident.