As discussed in detail in our article on Torts, if one is injured due to a violation of a legal duty of care by someone else, one may seek damages. Torts can be intentional (assault and battery, fraud, conversion, etc.) or negligent (personal injury caused by negligent driving or operating a machine or maintenance of property, etc.)  Most tort causes of action are based on negligent driving where a defendant is alleged to have operated a vehicle in a negligent manner, violating the duty of due care and causing injury to the plaintiff.

Often the defense will be alleged that the plaintiff, him or herself, was responsible for the injury and the plaintiff’s own negligence was the contributing cause. That doctrine of defense can be termed either contributory negligence or comparative negligence and in some cases, can bar all recovery of the plaintiff.

This article shall discuss the various types and characteristics of contributory and comparative negligence and their effect on a case.


Basic Law of Comparative Negligence:

Contributory negligence is the legal doctrine that if two parties are negligent, neither may recover damages from the other. The concept is based on the idea that if I also violated my duty of care, then I do not deserve to recover from another party even if that party violated his or her own duty.

Comparative negligence is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury. The negligence of a party does not bar all recovery, but the recovery is reduced based on the degree of relative negligence.

In states that recognize the pure contributory negligence rule, injured parties may not collect damages if they are as little as one percent to blame for the incident. Only five states follow this legal rule: Alabama, the District of ColumbiaMarylandNorth Carolina, and Virginia.

Comparative negligence exists in different forms, but its essence is that all parties should be liable for no more than their actual percentage of fault. Comparative negligence thus also tends to do away with other old common law concepts, most importantly joint and several liability, under which a plaintiff could recover all damages in an award from any, all or even just one defendant regardless of their relative degrees of blame.

The California judicial system allows a defendant to claim comparative negligence as a defense to reduce his or her own fault in a case. For example, a defendant who is only 40 percent at fault for contributing to a car accident will only be 40 percent liable for the award that a plaintiff receives.

California adopted the comparative negligence standard in 1975 when the state supreme court chose not to wait for the state legislature to act and changed the standard as to awarding and allocating damages on its own. The court chose the “pure” standard of comparative negligence, meaning that even if the plaintiff is mostly at fault that will not preclude an award of reduced damages. Note that in some other states if the plaintiff is 50 percent or more to blame for his or her injury, that will still serve as a bar to any recovery similar to the old common law contributory negligence doctrine.

Likewise, when the California Supreme Court adopted pure comparative fault it also did away with joint and several liability, assumption of risk, and “last clear chance” as doctrines.

Today if you are damaged due to the negligence of another in California you may still be entitled to recovery of money damages in connection with your injuries and property damage or loss, even if the defendant or defendants claim that you were at least partly or even mostly at fault for what happened.

Thirteen states recognize the Pure Comparative Fault Rule, which allows a damaged party to recover even if it is 99% at fault, although the recovery is reduced by the damaged party’s degree of fault. These states include Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington

Twelve states follow the 50% Bar Rule, meaning a damaged party cannot recover if it is 50% or more at fault, but if it is 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. States which adhere to the 50% Bar Rule within modified comparative fault include Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, South Carolina, Tennessee, Utah, and West Virginia.

Twenty-one states follow the 51% Bar Rule under which a damaged party cannot recover if it is 51% or more at fault. However, the damaged party can recover if it is 50% or less at fault, but that recovery would be reduced by its degree of fault. The states which follow the 51% Bar Rule include Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, Wisconsin, and Wyoming.

In cases involving comparative negligence, the jury determines the percentage of responsibility of each plaintiff, of each defendant, and of other responsible persons (e.g., employers in workers’ compensation subrogation third-party cases). After hearing the evidence, the jury will assign a percentage of responsibility to everyone involved. If the plaintiff is found to be less than 51% at fault for causing the accident, his recovery will be reduced by whatever percentage of fault he is found responsible for. For example, if plaintiff is awarded $300,000 in damages and was found to be 10% at fault, while two other defendants (Defendant A = 80%, Defendant B = 10%) are found to be 90% at fault in total, the plaintiff would be entitled to recover $270,000, but this begs the question of from whom plaintiff can collect the $80,000. The jury would then apportion among the defendants which defendant should pay how much.



The prior system in California often resulted in extreme unfairness.  As an example, if I did not fully stop at a stop sign and did a “rolling stop” at two or three miles per hour but was then hit broadside by a driver speeding thirty miles above the speed limit while joy riding through his own stop sign…I collect nothing under the old contributory negligence rule.  Under the new comparative negligence rule, I would perhaps bear five or ten percent of the fault, but the joy riding driver would bear the brunt of the damages. That seems far fairer to most people.

Note that the above rules on negligence do not necessarily apply to intentional torts which are not predicated on the concept of negligence but willful wrongdoing.


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