Comparative Negligence

Most states have now adopted a comparative negligence approach to contributory negligence, whereas 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.

Comparative Negligence - Two Approaches

There are two approaches to comparative negligence. "Pure" comparative negligence is the most flexible approach used to allocate fault. Under pure comparative negligence, a plaintiff's damages would be totaled and then reduced to reflect 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. Even if the plaintiff was 90% responsible for the injury, she would be entitled to recover 10% of the total damages. Most states, however, have adopted a "modified" comparative negligence scheme. Under this approach, a plaintiff will not recover if he or 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. States differ regarding whether to preclude damages when the plaintiff is found to be 50% (equally responsible) or 51 % (more responsible) for the injury.