Contributory and Comparative Negligence
Accidents take place everyday -- people are injured and property is damaged. When accidents happen, one of the first questions people typically ask is: "Who was at fault?" The concepts of contributory and comparative negligence address this question and provide a way to allocate fault between parties when the answer to this question is not entirely clear. As the terms imply, a party may contribute to an act of negligence or be comparatively negligent for his or her own injuries.
This article discusses contributory and comparative negligence and how they come into play in an injury claim. See FindLaw's Negligence section for additional articles, including Proving Fault: What is Negligence?.
Overview of Negligence in Accident or Injury Claims
Negligence is a term used to characterize conduct that creates an unreasonable risk of harm to others. If you are negligent, and your negligence causes another person to become injured, then you are legally responsible for paying damages. In order to prevail on a negligence claim, the party will have to prove the following elements:
- The defendant owed a duty toward the plaintiff (i.e. reasonable care for other's safety)
- The defendant failed to act in a reasonable way, or breached its duty (for example, a driver was reckless or intoxicated)
- The defendant's breach was the actual cause of another's injuries
- The defendant's breach was the proximate cause of the injuries (the defendant should have known that the breach would cause injury)
- The plaintiff suffered actual injuries, for which he or she may claim damages
The concept of contributory negligence is used to characterize conduct that creates an unreasonable risk to one's self. The idea is that an individual has a duty to act as a reasonable person. When a person does not act this way and injury occurs, that person may be held entirely or partially responsible for the resulting injury, even though another party was involved in the accident.
For example, Dave, a motorist, strikes Sally, a pedestrian who was crossing the street without carefully checking traffic or heeding the warning of the do-not-cross sign of the nearby streetlight. Who is at fault in this situation?
After an injured party files a negligence claim, the defendant (the person sued) may then assert a contributory negligence claim against the plaintiff (the person bringing the lawsuit), effectively stating that the injury occurred at least partially as a result of the plaintiff's own actions. This would be a contributory negligence counterclaim.
If the defendant is able to prove the contributory negligence claim, the plaintiff may be totally barred from recovering damages or her damages may be reduced to reflect her role in the resulting injury. The pedestrian in the example, Sally, probably would be considered at least partially at fault (and therefore liable for contributory negligence) for carelessly crossing the street.
See Defenses to a Negligence Claim for more information.
Most states have now adopted a comparative negligence approach to contributory negligence, wherein each party's negligence for a given injury is weighed when determining damages.
Traditionally, the courts viewed contributory negligence as a total bar to the recovery of any damages. Under the traditional view, if a person had contributed to the accident in any way, the person was not entitled to compensation for his or her injuries. In an attempt to reduce the harsh, oftentimes unfair outcomes resulting from this approach, most states have now adopted a comparative negligence approach.
There are two approaches to comparative negligence:
- Pure Comparative Negligence: Plaintiff's damages are totaled and then reduced to reflect his/her contribution to the injury. For example, if a plaintiff was awarded $10,000 and the judge or jury determined that the plaintiff was 25% responsible for her injury, she would be awarded $7,500.
- Modified Comparative Negligence: This is the most common approach. Plaintiff will not recover if he/she is found to be either equally responsible or more responsible for the resulting injury. In other words, in order to recover damages, the plaintiff must not be more than 50% at fault for the resulting injury.
Get Free Legal Help Today with a Negligence Claim or Counterclaim
If you have been sued for negligence but believe the plaintiff is at least partially at fault, you may be able to file a counterclaim for contributory or comparative negligence. However, you'll probably need help from an experienced attorney, who can uncover the right evidence and thoroughly evaluate the merits of the claim. Consider having a qualified injury attorney review your case for free, with absolutely no obligation.