One rainy day, a pedestrian wearing dark clothes hurriedly crossed the street outside a cross-walk, texting with a friend while rushing to catch a bus. A driver going 15 miles per hour above the posted speed limit was caught by surprise and didn't stop in time. The driver hit the pedestrian, who fell on the hard pavement. At a nearby emergency room, X-rays revealed the pedestrian suffered a broken arm, together with some bumps and bruises.
In a personal injury lawsuit against the driver, will the pedestrian, who likely bears some of the blame for the accident, be awarded compensation (what the law calls "damages") for injuries and losses like medical bills, lost income, and pain and suffering? The answer depends, at least in part, on the state where the accident happened. In one of the few states that follows the contributory negligence rule, the pedestrian will be out of luck.
We begin with an explanation of contributory negligence. From there, we'll look at a different way of dealing with shared fault, known as comparative negligence. Comparative negligence is a bit more complicated than contributory negligence, but it produces fairer results.
What is Contributory Negligence?
A handful of states follow the contributory negligence rule. In a contributory negligence state, a plaintiff (the person bringing a lawsuit) whose negligence contributes to cause the underlying accident can't recover any damages from another at-fault party. When the plaintiff is found to be even one percent at fault for what happened, they're barred from recovering any compensation, no matter how serious their injuries.
As you might imagine, contributory negligence often produces harsh results. Why would a state follow such an inequitable rule? Because it's easy to understand and apply. And it quickly gets rid of lots of personal injury cases that might otherwise crowd busy court dockets. Yes, it's unfair. But it's also simple and efficient.
Four states—Alabama, Maryland, North Carolina, and Virginia—plus the District of Columbia still follow the contributory negligence rule.
Comparative Negligence Is the Rule Everywhere Else
The remaining states all follow a version of the comparative negligence rule. Generally speaking, in a comparative negligence state, the plaintiff's percentage share of the fault for an accident reduces the damages the plaintiff can collect by that amount.
Computing Damages in a Comparative Negligence State
Return once again to our opening example. Remember we've also assumed that a jury found the driver 90% at fault and the pedestrian 10% to blame. Now, let's assume that the jury assessed the pedestrian's total damages at $100,000. In a comparative negligence state, the pedestrian's 10% share of the fault would reduce their damages by $10,000 ($100,000 x 10% fault), to $90,000.
Different Comparative Negligence Rules
There are two different kinds of comparative negligence rules: Pure comparative negligence and modified comparative negligence. In addition, there are two groups of modified comparative negligence states—those that follow the 50% rule and those that follow the 51% rule.
Pure Comparative Negligence
In a pure comparative negligence state, the plaintiff is allowed to collect some damages as long as they're not 100% to blame for the accident. For example, if a jury finds the plaintiff was 99% at fault but assesses 1% of the blame to the defendant, the plaintiff can collect 1% of their total damages.
Modified Comparative Negligence
Modified comparative negligence states also reduce the plaintiff's damages by their share of the fault. But they put a limit on the amount of blame the plaintiff can share. When the plaintiff's share of the fault equals or exceeds this limit, the plaintiff is barred from collecting any damages. There are two kinds of modified comparative negligence states.
50% fault limit states. In these states, when a plaintiff is found to be 50% or more to blame, the plaintiff gets no damages. Here's a quick example. Let's assume a jury finds the plaintiff's total damages are $100,000. The jury assigns the defendant 51% of the fault. It finds that the plaintiff was 49% to blame for the accident. How much will the plaintiff collect? We subtract the plaintiff's share of the fault ($100,000 x 49% = $49,000) from the total damages of $100,000. The plaintiff's net recovery will be $51,000.
What happens if the jury finds each side shares 50% of the blame? In a 50% fault limit state, the plaintiff gets no damages.
51% fault limit states. A 51% fault limit state works much the same as a 50% state, but the cutoff is 51% of the total fault. In other words, once the plaintiff's share of the negligence equals or exceeds 51% of the total, the plaintiff gets nothing.
Get Help With Your Case
If you have a personal injury case and the defendant claims that you were partly to blame, you'll want to get legal advice from experienced counsel. In a contributory negligence state, any negligence on your part effectively kills your case. When you're in a modified comparative negligence state, you must make sure that your share of the blame isn't greater than or equal to your state's fault limit. An experience personal injury lawyer can help you navigate your way through this potential minefield.
When you're ready to pursue your claim, here's how to find a lawyer in your area who's right for you.