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The Difference Between Comparative & Contributory Negligence

An essential factor in any personal injury claim is the determination of fault by the plaintiff. This factor significantly affects whether the plaintiff has a valid claim over the defendant in a personal injury claim as determined by the law. The two general types of principle that determine whether a party’s liability over their injury affects their claim for damages in a personal liability claim are contributory and comparative negligence. However, determining which doctrine to apply in a case solely depends on the state jurisdiction’s law. Each state adopts some form of comparative negligence or contributory negligence. Thus, it is vital to know whether the state that has jurisdiction over the personal injury case is comparative negligence or a contributory negligence state, what each principle entails, and how they differ. By learning comparative and contributory negligence, a plaintiff could understand the strength of their claim for damages.

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What is Comparative Negligence?

Generally, the comparative negligence principle allows an injured party to claim damages against the party that caused the injury, even if the injured party contributed to the injuries they sustained. Of course, this is provided that the injured party’s liability for their damages is not more than the defendant’s liability. The percentage of contributory liability depends on the type of comparative negligence applied by the state or jurisdiction.

There are three types of comparative negligence that have specified percentages of fault by the injured party that directly affect their claim for damages.

The Three Types of Comparative Negligence

The three comparative negligence principle types include pure comparative, modified comparative, and slight negligence.

Pure Comparative

Under the pure comparative negligence principle, an injured party may claim the damages they sustained against the defendant. However, the damages the injured party can claim are reduced by the percentage of their fault contributing to their injury.

Several states use this doctrine in determining personal injury damages claims. These states include Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington.

Modified Comparative

Under a modified comparative negligence principle, an injured party’s damages claim is reduced by the exact percentage of their liability provided that their contribution to their injury does not exceed 50% or 51%. The actual applicable rate depends on the state of jurisdiction. However, depending on the state of jurisdiction, an injured party may be barred from recovering any damages if their liability to their injury exceeds 50% or 51%.

Under the 50% bar rule, an injured party can claim damages against the defendant provided their contribution to their injury is less than 50%. Hence, the injured party is barred from collecting damages if they are found to have at least contributed 50% to their injuries.

The states that follow the modified comparative 50% bar rule include the following: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Tennessee, Utah, and West Virginia.

Under the 51% rule, an injured party can claim damages against the defendant provided that their liability to their injury is no more than 50%. This rule bars an injured party from claiming damages against the defendant if they are found to have contributed at least 51% to their injuries.

The majority of the states follow the modified comparative 51% bar rule. These states include Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Oklahoma, Pennsylvania, South Carolina, Texas, Vermont, and West Virginia, Wisconsin, and Wyoming.

Gross

The gross negligence rule is a type of comparative negligence that is exclusive to South Dakota. Under the gross negligence doctrine, both parties’ degrees of fault are compared to determine if there is a claim for damages. A claim for damages is allowed if the injured party is found to have some “slight” negligence to their injury, while the other party is determined to have “gross” negligence in the incident. However, an injured party is barred from claiming damages from the defendant if they have contributed “more than slight” to their injuries.

What is Contributory Negligence?

Under the contributory negligence principle, an injured party is barred from collecting damages if they in any way or form have contributed to their injuries. This strict principle does not allow a plaintiff to collect any damages if they are found to have contributed to their injuries, even if it is only 1%. The states that follow the contributory negligence principle are as follows: Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.

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Sources

  • Cornell Law School. (n.d.). Comparative negligence. Legal Information Institute. Retrieved June 29, 2022, from https://www.law.cornell.edu/wex/comparative_negligence
  • Cornell Law School. (n.d.). Contributory negligence. Legal Information Institute. Retrieved June 29, 2022, from https://www.law.cornell.edu/wex/contributory_negligence