The Differences Between Contributory Negligence and Comparative Negligence
When a lawyer files a negligence case in civil court, it's up to the judge or jury to determine who is at fault. That is, the person whose negligence resulted in the injury is liable for damages. If the court finds the plaintiff and the defendant were both negligent, the judge determines what percentage of negligence each party is responsible for. That decision determines the assignment of damages. Currently, there are four doctrines concerning damage awards.
Pure Contributory Negligence
Pure contributory negligence is from English common law, dating from when English law was unwritten and based on precedents. With this system, the judge or jury must decide whether the plaintiff is negligent (and to what degree) for his own injury. Contributory negligence states that if the plaintiff is found even remotely responsible for his own injury for whatever reason, he cannot receive any damages from the defendant, even if the negligence is only 1 percent.
Pure Comparative Negligence
In the states that use the pure comparative negligence system, even if the plaintiff is found at fault to some degree, he still may recover damages minus his degree of fault. If the defendant is found 65 percent at fault, the person who suffered injuries could recover 65 percent of the damages claimed. States using pure comparative negligence are Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota and Washington state.
Modified Comparative Fault
Modified comparative fault is similar to pure comparative negligence insofar as each party involved can receive a percentage of the fault. However, if the court decides the plaintiff is at fault to a certain percentage, he cannot recover any damages from the defendant. Twelve of the 30 states using this law deem that if the plaintiff is 50 percent negligent, he cannot recover any damages. Of the remaining 22 states, comparative damage must reach 51 percent before damages are unrecoverable.
States Using Pure Contributory Negligence
While it is common practice nationally to admit no fault in an accident, this is especially true for the five states that still use pure contributory negligence. Insurance companies in these states work very hard to get people to admit even the least amount of fault or responsibility. The states that still use pure contributory negligence are Alabama, Virginia, Maryland, and North Carolina; and the District of Columbia.
States Using Modified Comparative Fault
States using the 50 percent modified comparative fault include Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia. In contrast, states using the 51 percent rule are Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming
There are many variables in the several states using comparative negligence. The five states that use the contributory negligence rule generally do not vary in their systems. Individuals who live in a state but are involved in legal action in another will be subject to the laws of the state in which the accident occurred. Most states, as mentioned, have found that the other options are fairer than the pure contributory negligence doctrine.