What is comparative fault

When someone gets hurt in a traffic accident, deciding who's at fault is often a difficult task. Of course, there are some accidents in which it’s pretty obvious where to put the blame, but many times it’s not so clear: enter comparative negligence.

Suppose we have two drivers: Abby and Brian. Abby stops at a stop sign and prepares to turn left onto a busier road with no stop sign. She looks both ways multiple times, and decides to make her turn when the road seems to be clear. Meanwhile, Brian barrels down the road 20 miles per hour over the speed limit. He’s unable to slow down and slams into Abby’s car.

Here, both parties share some of the fault: Brian definitely should not have been speeding, but Abby should have been a bit more attentive and cautious before making her turn. So who is responsible?

Comparative Negligence Theories and How They Work

Some states split the blame -- and the responsibility for paying damages -- by using “comparative negligence” theories. These theories say recovery for damages will be reduced by the percentage of fault attributable to them. This situation is often referred to as "apportionment of fault" or "allocation of fault."

Suppose Abby sues Brian and claims that she suffered damages of $100,000. Assume further that the jury finds that Abby's own negligence contributed to the accident by 30 percent and Brian’s negligence contributed by 70 percent. If the jury agrees that damages are worth $100,000, Abby would only be able to recover $70,000 (or $100,000 reduced by 30 percent caused by her own negligence). If, conversely, Abby’s negligence was found to have contributed 70 percent to the accident, she could only recover $30,000 for the 30 percent fault for which Brian was responsible.

This example is true in states that apply a "pure" theory of comparative negligence. Other states have modified comparative negligence principles, permitting a lawsuit only if the plaintiff was less than 50 percent at fault. Comparative negligence (or comparative fault) laws typically fall into one of the following general types:

Pure Contributory 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 Columbia, Maryland, North Carolina, and Virginia.

Pure Comparative Fault

States recognizing the pure comparative fault rule of accident liability allow parties to collect for damages even if they are 99 percent at fault. However, the amount of damages is limited by the party's actual degree of fault. So if a drunk driver is predominately to blame for an accident, but makes an injury claim because the other driver had a burned out taillight, he or she may collect a minimal amount of damages. Nearly one-third of states follow this rule, including California, Florida, and New York.

Modified Comparative Fault

The majority of states follow the modified comparative fault model, which is split into two distinct categories: the 50 percent bar rule and the 51 percent bar rule. In states following the 50 percent rule (including Colorado and Utah), a party that is 50 percent or more responsible for an accident may not recover any damages. In states adhering to the 51 percent rule, a party may not recover if he or she is 51 percent at fault.

Have Specific Questions About Comparative Negligence? Ask a Lawyer

It's normal to feel overwhelmed by the complexities of negligence law, particularly when you may be at least partially at fault for your injuries. If you're filing a lawsuit, or defending against one, you owe it to yourself to speak with a seasoned car accident lawyer who can provide personalized legal advice and guide you through the lawsuit process.

In the simplest of cases, the driver who causes a car accident will be at blame. Depending on the state, the injured driver will then make a claim against the at-fault driver, seeking compensation for damages. A car accident lawyer can help you get the compensation you deserve. 

In this scenario, only one driver was at blame. However, not all accidents are that simple. For instance, what if both drivers were to blame? This is where the concept of comparative negligence comes in.

Read on to find out more about the comparative negligence definition, the various types, and comparative negligence examples.

What is Comparative Negligence

Comparative negligence, also known as comparative fault, is a legal principle used in tort law to assign blame to two or more parties based on the degree of negligence each contributed to the incident. In other words, if the injured victim was partially at fault through negligence on their part, the jury, judge, or insurance company will assign a percentage of blame to both the injured victim and the defendant.

The concept of comparative negligence plays a key role in how damages are awarded. Comparative negligence states use the assigned blame to limit the amount of damages a plaintiff can recover. For example, if the judge assigns 70% fault to the defendant and 30% to the plaintiff, the plaintiff may only be able to recover 70% of the damages, rather than the full 100%. As we’ll see, there are different types of comparative negligence, so damages awarded will vary based on the state.

Types of Comparative Negligence

Three types of comparative negligence exist in the United States:

• Contributory negligence: Contributory negligence states prevent the plaintiff from collecting damages if they were found even one percent negligent. Essentially, if the plaintiff contributed in any way to the incident, they cannot recover any damages. The only states that recognize contributory negligence are Alabama, District of Columbia, Maryland, North Carolina, and Virginia. 

• Pure comparative negligence: Under the pure comparative negligence rule, damages are awarded based on the assigned fault determined by the courts. Even if the plaintiff was found 99 percent negligent, they are allowed to claim damages for the one percent they were not at fault for. There are currently thirteen states that recognize the pure comparative negligence rule.
• Modified comparative negligence: Most states abide by what is known as a modified comparative negligence principle. Furthermore, two types of modified comparative negligence exist. The first is the 50 percent bar rule, which means the plaintiff cannot recover damages if they were found to be 50 percent or more at fault. The second is the 51 percent bar rule, which prevents the plaintiff from recovering damages if they were assigned 51 percent or more of the blame.

Examples of Comparative Negligence

Let’s say Mandy is driving and makes an illegal u-turn at an intersection. While she makes the illegal turn, she gets struck by Tom, who ran a stop sign. Mandy sustains injuries totaling $10,000, and Tom also sustains injuries totaling $10,000. After sifting through the evidence, the court assigns Mandy 49 percent blame and Tom 51 percent for the incident.

How would the three types of comparative negligence handle this case?

Contributory negligence

Since both drivers contributed in some way to the accident, both cannot recover any damages from each other.

Pure comparative negligence

Both Tom and Mandy could collect a portion of their damages, according to the blame assigned. Mandy would collect $5,100 (51% of her total damages), and Tom would collect $4,900 (49% of his total damages).

Modified comparative negligence

In a state following the 50 or 51 percent bar rule, Tom would not be able to recover for damages since he was found 51 percent at fault. Mandy could collect a total of $5,100.

If the judge assigned an even 50/50 split in blame, both Tom and Mandy would be unable to collect from each other under the 50 percent bar rule. But, if both were found equally at fault under the 51 percent bar rule, they could both claim damages from each other.

Key Takeaways

• Comparative negligence is a way to assign fault to the various parties involved in an accident.
• There are generally three types of comparative negligence: contributory negligence, pure comparative negligence, and modified comparative negligence.
• Most states abide by the modified comparative fault principle.
• In all three types, the amount of damages you can collect from the other party will be limited by the fault assigned to you.

Valiente Mott

If you’d like to learn more about comparative fault and how it affects your ability to seek damages, contact the Nevada personal injury attorney team at Valiente Mott today!

Our team of legal experts has dealt with numerous car accident cases and works hard to defend the rights of personal injury victims. We offer a free consultation and only charge if we win your case!

Effective subrogation requires a thorough understanding of some of the more confusing legal terms we must all work with. Matthiesen, Wickert & Lehrer, S.C. has compiled a list of the various laws in every state dealing with whether the state is a contributory negligence state (bars recovery with only 1 percent of fault by the plaintiff) or a comparative negligence state (recovery by plaintiff is reduced or prohibited based on the percentage of fault attributed to the plaintiff), and whether the state is a pure comparative or modified comparative state. It can be viewed by clicking HERE. It is useful in evaluating subrogation potential where there may be contributory negligence on the insured’s part.

Comparative fault systems fall into one of three basic types: pure contributory negligence, pure comparative fault,and modified comparative fault (sometimes referred to as “proportionate responsibility”). The comparative fault standards for the 51 jurisdictions break down as follows:

Pure Contributory Negligence

Only four states and the District of Columbia recognize the Pure Contributory Negligence Rule, which says that a damaged party cannot recover any damages if it is even 1 percent at fault. The jurisdictions which employ the Pure Contributory Negligence Rule include Alabama, District of Columbia, Maryland, North Carolina, and Virginia. Under this rule, a plaintiff found 10 percent at fault for causing an accident will recover nothing, even though the defendant is 90 percent at fault. In certain cases, the contributory negligence defense can be overcome. If the plaintiff can prove that the defendant’s willful and wanton acts caused the injury, then the defendant cannot claim contributory negligence bars the plaintiff from recovery. Likewise, if the plaintiff can show that the defendant had the last clear chance to avoid an accident and did not do so, then the defendant can still be held accountable even if a plaintiff is found contributorily negligent.

Pure Comparative Fault

Thirteen states recognize the Pure Comparative Fault Rule, which allows a damaged party to recover even if it is 99 percent 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.

Modified Comparative Fault

There are competing schools of thought in the 33 states that recognize the Modified Comparative Fault Rule.

Twelve states follow the 50 percent Bar Rule, meaning a damaged party cannot recover if it is 50 percent or more at fault, but if it is 49 percent or less at fault, it can recover, although its recovery is reduced by its degree of fault. States which adhere to the 50 percent 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 percent Bar Rule under which a damaged party cannot recover if it is 51 percent or more at fault. However, the damaged party can recover if it is 50 percent or less at fault, but that recovery would be reduced by its degree of fault. The states which follow the 51 percent 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 a pure contributory negligence jurisdiction, if the jury finds the plaintiff was the least bit negligent and contributed to the accident, then the plaintiff will recover nothing. Therefore, even if the plaintiff is only 5 percent at fault and the defendant is 95 percent at fault, the plaintiff recovers nothing.

In a comparative negligence jurisdiction, if a jury finds that plaintiff is 5 percent at fault and defendant is 95 percent at fault, plaintiff would still be able to recover, but his $10,000 in damages would be reduced by his 5 percent at fault, so plaintiff would recover only $9,500.

Comparative negligence jurisdictions differ among states. For example, if the plaintiff is found to be 50 percent at fault, and the defendant is 50 percent at fault, some comparative negligence states would still allow the plaintiff to recover $5,000 (50 percent of his damages), while other states would prevent him from recovering anything because he is equally at fault with the other driver. Some argue that comparative negligence jurisdictions are unfair because a difference of just 1 percent of fault is all it takes for a plaintiff to go from recovering half his damages to recovering nothing.

Still other states draw the line at 51 percent, following the principle that a plaintiff who is MORE negligent than a defendant should not be able to recover anything. For example, in Wisconsin, the plaintiff would recover $5,000 if he is 50 percent negligent, but if he is 51 percent negligent, he would recover nothing.

Let’s use Texas as an example to further understand these concepts. Texas, along with 32 other states, uses a Modified Comparative Fault Rule. If a person is injured in a car accident in Texas, he cannot recover damages from the other party if he is 51 percent or more at fault for the accident. By definition, comparative fault (which Texas officially calls “proportionate responsibility”) is just that: The defendant argues that he was not the only one who was careless and that the plaintiff shares some of the blame for his own injuries. In pure comparative fault jurisdictions, the plaintiff can recover even if he was 80 percent at fault, but would recover only 20 percent of his damages.

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 percent 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 $100,000 in damages and was found to be 20 percent at fault, while two other defendants (Defendant A = 60 percent, Defendant B = 20 percent) are found to be 80 percent at fault in total, the plaintiff would be entitled to recover $80,000, but this begs the question of from whom plaintiff can collect the $80,000.

Tied to and somewhat complicating the concept of comparative fault is the notion of joint and several liability. Prior to 1995, Texas followed the traditional “Joint and Several Liability Rule”. This Rule made each tortfeasor/defendant liable for the entire amount of the plaintiff’s damages regardless of their relative degrees of fault or responsibility. The plaintiff could pick from whom he collected his $80,000. So, in the fact pattern above, the plaintiff would be able to recover his $80,000 damages from either defendant. This was true even if it was determined that the vehicle that hit them was only 20 percent responsible for the plaintiff’s damages; they would still be responsible for 100 percent of the damages.

In 1995, however, Texas made a change and now follows a rule some refer to as “Modified Joint and Several Liability”. This Rule says that a defendant is only responsible for the full amount of the plaintiff’s damages if they are found to be more than 50 percent responsible for the accident. Otherwise, they are only responsible for an amount equal to their percentage of fault. Under modified joint and several liability, a plaintiff is only able to recover his full amount of damages from the tortfeasor/defendant if the jury found him to be more than 50 percent responsible for the accident. So, in the example above, plaintiff could recover up to 20 percent of the $80,000 in damages from Defendant B, or choose to recover all $80,000 from Defendant A. In the case of the latter, Defendant A would look to Defendant B for contribution in the amount of $20,000 – the amount owed by Defendant B.

Each state has different comparative fault rules and different joint and several liability laws. Understanding each is critical to evaluating and pursuing subrogation cases on a national basis. Matthiesen, Wickert & Lehrer, S.C. has compiled a chart showing the source of these rules for all 51 jurisdictions, and it can be found HERE.