Comparative vs. Contributory Negligence


Contributory negligence is a doctrine in which, in its purest form, one who negligently injures another is not found liable if the harmed party was itself negligent in the smallest degree. For example, a pedestrian who was crossing the street after ignoring a “do not cross” sign is struck by a motorist. Under a contributory negligence defense, the pedestrian may be barred from collecting any damages if it is shown that the pedestrian was even only partly at fault.

Contributory negligence is a common law defense that originated in England. It was often used by employers trying to protect themselves from lawsuits brought by injured workers. Some employers may have felt that the absence of such a defense would contribute to carelessness with regard to safety or outright fraud by their workers.

But consider the example of the pedestrian injured while crossing the street – what if the motorist who struck him was legally drunk and had plenty of time to stop? Whether you agree or not that the pedestrian should receive some compensation in this revised scenario, the contributory negligence rule has generated some controversy. For this reason, even in some of the states that have not adopted the alternative doctrine of comparative negligence, a modified form of the contributory negligence rule has been adopted.

Most states, however, have adopted the comparative negligence system of allocating recovery for a tort. Under this system, compensation is based on a comparison of the defendant’s negligence with that of the plaintiff’s.

For example, if in the above scenario it is deemed that the drunk driver was 80 percent at fault for having struck the pedestrian, although the pedestrian was considered to be 20 percent at fault for his or her own injuries, the pedestrian could collect 80 percent of the damages. The formulas used to make such determinations can be complicated and at times even arbitrary, so comparative negligence can pose its own set of difficulties.

In one of the modified forms of contributory negligence, the plaintiff can recover only if his or her negligence is “not greater than”, or less than 51 percent, of the total combined negligence. In another, it must be “not as great”, or less than 50 percent. The difference seems minor, but apparently there is a significant difference in how juries interpret the degree of negligence under the two variant forms of contributory negligence.

Finally, it bears cautioning that neither comparative nor contributory negligence should be confused with several or joint liability, which apportions negligence among multiple defendants, not between the defendant(s) and the plaintiff(s) in a case.

If you have been injured in an accident, it pays to consult with a qualified personal injury lawyer. At, we can help you find the right lawyer to handle your case. Please contact us today.