Contributory vs. Comparative Negligence
May 29, 2023 | J.L. King
We’re used to thinking of an accident being “his fault, her fault, or nobody’s fault.” In actuality, however, accidents that produce injuries are often “their fault,” meaning partly one party’s fault and partly another party’s fault.
In some cases, multiple parties share fault. Contributory negligence and comparative negligence refer to ways that US jurisdictions distribute liability when two or more parties share fault for an accident.
Comparative Negligence: Three Different Versions
The principle of comparative negligence allows a court to reduce a party’s compensation based on their relative percentage of fault for an accident. There are three different ways of doing this, as described below.
“Pure” Comparative Negligence
The pure comparative negligence system applies in about a dozen states, including Florida and California. Under this system, a court will assign each party a percentage of fault, and then it will subtract compensation from each party according to their own percentage of fault.
If you were 1% at fault, you would lose 1% of your damages. If you were 99% at fault, you would lose 99% of your damages. If you were 55% at fault, you would lose 55% of your damages.
50% Modified Comparative Negligence
The 50% modified comparative negligence system works like the pure comparative negligence system, with one important difference. Any party who is 50% or more at fault loses 100% of their compensation.
Georgia’s comparative negligence system fits into this category. Note that you cannot use comparative negligence as a defense if you committed an intentional act against the plaintiff, such as an assault. Likewise, a party can still avoid all damages by proving that the plaintiff “assumed the risk” inherent in the activity that injured them. This typically applies to sports and outdoor activities.
51% Modified Comparative Negligence
The 51% modified comparative negligence system works like the 50% comparative negligence, except that the liability cutoff is at 51% instead of 50%.
Contributory negligence is an archaic, exceptionally harsh system that almost every US state rejected long ago. Under contributory negligence, a plaintiff who bears even 1% liability for an accident cannot receive a dime in compensation. All the defendant has to do is find the slightest fault in the plaintiff to win. Imagine, for example, a defendant who drives five miles over the speed limit losing a lawsuit for catastrophic damages against an intoxicated defendant.
Currently, only five US jurisdictions use contributory negligence: Alabama, Maryland, North Carolina, Virginia, and the District of Columbia.
“Slight” vs. “Gross” Negligence
Under the “slight/gross” comparative negligence system, a plaintiff can win damages against a defendant only if the plaintiff’s negligence was no more than “slight.” Meanwhile, the defendant’s behavior must have exhibited “gross negligence,” which is an extreme form of negligence. It is not certain that driving while intoxicated would constitute “gross negligence” in every instance.
Only one state recognizes the “slight/gross” negligence system, which is South Dakota.
Applying These Principles at the Settlement Table
None of the foregoing rules technically apply at the settlement negotiating table, where the parties are free to bargain as they please.
Nevertheless, as the old saying goes, “All bargaining takes place in the shadow of the law.” The eventual settlement will probably reflect what the parties believe a court would do.
Talk to a Qualified Personal Injury Lawyer
If you suffered an injury in an accident where liability is unclear or in dispute, you probably need a personal injury lawyer to help you sort things out. Indeed, if the other side hires a lawyer and you don’t, you could get “taken to the cleaners.” You can be certain that an insurance company will always have an experienced lawyer available to try to deny your claim or at least minimize its value. Hire a lawyer of your own to even the playing field.
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