Comparative Versus Contributory Negligence

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Contributory negligence and comparative negligence are legal doctrines applied by courts to determine who is liable for an accident. These doctrines also determine whether a plaintiff' in a lawsuit is eligible for damages. Fault is a key issue when a lawsuit is filed as it determines liability. Yet, many accidents result from negligence committed not only by the defendant but by the plaintiff as well.

Example

Bill is a self-employed computer consultant. He is on a business lunch with Jeff, a manager at ABC Manufacturing. Bill is trying to convince Jeff that ABC needs Bill's services. Bill is nervous and drinks too much alcohol. After lunch Bill and Jeff head back to ABC's headquarters to continue their conversation. Bill is feeling tipsy. He's on his way to Jeff's office when he lurches into a bookcase. The bookcase falls onto Bill, injuring his shoulder severely.

Bill files a lawsuit against ABC seeking compensatory damages for bodily injury. His suit alleges that ABC was negligent because it failed to secure the bookcase to the wall. ABC counters that Bill was negligent when he overindulged in alcohol. His inebriated state was a contributing factor to his injury.

Contributory Negligence

Under the theory of contributory negligence, a person is prohibited from recovering damages for an injury if his or her own negligence contributed to the injury.

Recovery is barred even if a person was only slightly responsible for the injury. In the ABC Manufacturing scenario Bill would not be entitled to damages if ABC could show that Bill was even 1% responsible for his injury.

Before workers compensation laws were enacted, many employers successfully fended off lawsuits from injured workers by arguing that the workers' own negligence contributed to their injuries.

As a legal principle, contributory negligence is often considered overly harsh. Many defendants have no difficulty demonstrating that the plaintiff was 1% responsible for the injury. Thus, all but a handful of states have abandoned this doctrine.

Comparative Negligence

Instead of contributory negligence, most states apply the doctrine of comparative negligence. Under this legal theory a person is compensated (or not) depending on his or her proportionate degree of liability. A person may be eligible for damages even if that person's negligence contributed to his her own injury. There are two types of comparative negligence rules: pure and modified.

Pure Comparative Negligence

Under the doctrine of pure comparative negligence, a person is eligible for compensation only to the extent he or she was not responsible for the injury. For example, suppose a court finds that Bill (in the previous example) was 25% responsible for his shoulder injury. Had Bill been sober when the accident occurred he would have been awarded $50,000 in damages. Bill's award is reduced by 25% (his proportion of responsibility). He receives only $37,500.

About a quarter of the states in the U.S. follow the doctrine of pure comparative negligence.

One main drawback of this rule is that it enables a person to recover damages even if he or she was mostly responsible for an injury. For instance, Bill could recover 1% of the damages ($500) even if he was 99% responsible for his injury. To prevent this situation many states have adopted a doctrine called modified comparative negligence.

Modified Comparative Negligence

About two-thirds of the states have adopted a modified comparative negligence rule. Under this type of rule damages are awarded only for that portion of an injury not attributed to the plaintiff. However, compensation is allowed only if a person's culpability does not exceed a specified threshold. This threshold is typically 50% or 51%.

For example, suppose Bill's suit against ABC Manufacturing is filed in a state that has a modified comparative negligence law.

The law permits an injured person to recover damages if he or she was less than 50% responsible for the injury. If a court finds that Bill is responsible for 40% of his injury, Bill will be eligible for damages. His contribution to the injury (40%) is less than the 50% threshold. The amount of damages Bill will receive will be 60% of the damages he would have received had he not contributed to his injury.

Now suppose the court finds that Bill is 60% responsible for his injury. In this case Bill will not collect any damages. His scope of responsibility (60%) exceeds the 50% threshold.

Statute or Case Law

Each state has a law that determines whether it follows the principle of contributory negligence or  some version of comparative negligence. The law may be a statute (written law) or a previous court decision.