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Defenses: Contributory and Comparative Negligence in Car Accident Cases

A minority of states have maintained the common law defense of contributory negligence. Its significance to automobile accident liability is that individuals cannot sue another for injuries or damages if they also contributed to the accident by his or their own negligence.

For example, if they are making a left-hand turn in their vehicle and are struck by an oncoming vehicle that is traveling 10 mph over the speed limit, they cannot sue the motorist for damages if they failed to have their turn signal on and the speeding motorist did not know that they were going to turn in front of them. Under such a theory, their own negligence contributed to the accident, and, therefore, bars their right to recover from the other motorist. This situation is referred to as "pure contributory negligence."

Some states have maintained a version referred to as "modified contributory negligence" in which individuals may file suit against another tortfeasor only if their own negligence contributed to the accident by less than 50 percent.

Comparative Negligence

In states that utilize comparative negligence theories, individuals may sue another motorist whether or not their own negligence played any role in the accident. However, recovery for damages will be reduced by the percentage of fault attributable to them. This situation is often referred to as "apportionment of fault" or "allocation of fault."

For example, in the above example, assume that the turning driver sues the speeding motorist for $100,000 in damages. At trial, a jury will be asked to determine what percentage of the accident was caused by the speeding and what percentage of the accident was caused by the turning driver's failure to operate the turn signal.

Assume further that the jury finds that the turning driver's own negligence contributed to the accident by 30 percent and the negligence of the other motorist contributed to the accident by 70 percent. If the jury agrees that damages are worth $100,000, the turning driver would only be able to recover $70,000 in damages (or $100,000 reduced by 30 percent caused by that driver's own negligence). If, conversely, the negligence was found to have contributed 70 percent to the accident, the driver could only recover $30,000 for the 30 percent fault for which the other tortfeasor was responsible.

Again, this is true in states that apply a "pure" theory of comparative negligence. Other states have modified comparative negligence principles to permit a lawsuit only if a person is were less than 50 percent negligent.

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