In a car accident case, comparative and contributory negligence are defenses that come into play when the time comes to sort out two key issues:
In a typical car accident lawsuit, the plaintiff alleges that the defendant’s carelessness (or negligence) caused the crash, and that the defendant should be held liable for the plaintiff’s damages, including any injuries and vehicle damage.
In response to the plaintiff’s allegations, the defendant may be able to use the rules of comparative and contributory negligence to show that the plaintiff played a role in causing the car accident. If used successfully, comparative and contributory negligence may reduce a plaintiff's financial recovery, or even bar it completely. While the two defenses share some similarities, there are key differences between comparative and contributory negligence, and it’s important to note that each state follows one rule or the other, sometimes with variations (more on state-by-state rules later). Let’s take a closer look at these two defenses and how they work in a car accident case.
Comparative negligence is the more common of the two defenses. Comparative negligence divides fault between the plaintiff and defendant according to a percentage. For example, let’s say Joe claims that Mary owes him damages because she ran a red light and hit his car. In response to Joe’s claims, Mary may mount a comparative negligence defense. She may claim that Joe made an illegal turn and should never have been in the intersection, and so he bears some percentage of responsibility for causing the accident. The case goes all the way to trial, and the jury finds that Joe incurred damages of $100,000. The jury also finds that Joe was 30% responsible for the accident, and Mary was 70% liable. Under comparative negligence rules, Mary must pay Joe $70,000 ($100,000 reduced by 30%, the degree of fault assigned to Joe).
Different states have different comparative negligence rules. However, the two most common rules are: pure comparative negligence and modified comparative negligence. (Find the law in your state in our State Car Accident Laws article collection.)
Pure Comparative Negligence. In pure comparative negligence jurisdictions, a negligent plaintiff may recover compensation from any other party who bears some degree of responsibility for the car accident, regardless of the plaintiff’s own percentage of fault. Even a plaintiff who is found to be 90% at fault for an accident may still recover compensation for 10% of his or her damages.
Modified Comparative Negligence. In states that follow modified comparative negligence rules, a plaintiff will be barred from recovering any damages at all if he or she is deemed to be 50% or more responsible for causing the car accident. But a plaintiff whose share of responsibility is anything less than 50% retains the right to receive compensation, in an amount equal to the percentage of the other party’s fault. For example, let’s say a plaintiff gets into a fender bender, incurs $1,000 in vehicle damage, and is deemed 55% at fault. In that case, under modified comparative negligence rules, the plaintiff would recover nothing. But if the same plaintiff were deemed only 45% at fault, he or she would recover $5,500.
The rule of contributory negligence is more harsh to negligent plaintiffs, and is followed only in Alabama, Maryland, North Carolina, Virginia and Washington D.C. In these states, a defendant can to avoid liability altogether by establishing that the plaintiff’s own negligence contributed to the accident. There’s no threshold to meet under contributory negligence rules. If a plaintiff is found to be just 1% at fault for causing the accident, he or she will be denied any chance at compensation.
"Last Clear Chance." Most contributory negligence states follow a rule called "the last clear chance." Even when a defendant can show that a plaintiff’s own negligence contributed to the accident, the plaintiff may still recover damages by showing that the defendant had a “last clear chance” to avoid the accident. For example, assume that Joe brings a car accident claim against Mary, claiming that she hit his car after running a red light. It’s a contributory negligence state, and Mary claims that Joe made an illegal turn, so he is partially liable for the accident. Even if it’s true that Joe made an illegal turn, and even though they’re in a state that follows contributory negligence rules, if Joe shows that Mary had the last clear chance to avoid the accident -- i.e. she had reasonable time to safely swerve out of the way and avoid the collision -- but did not avoid it, Joe can still recover compensation.
In a car accident case, comparative and contributory negligence rules may be powerful shields in the defendant's arsenal. Plaintiffs need to understand which of these rules is in place where they live, and how their case may be affected if liability isn’t a cut-and-dried issue. If you have questions about your car accident case, it may be wise to consult an experienced personal injury attorney.