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Contributory and Comparative Negligence

When a lawsuit is filed with a court for damages caused as a result of a car accident, the person who files the lawsuit (the plaintiff) must first prove that the person who the lawsuit is brought against (the defendant) caused the accident through negligence. However, even if negligence is proved, the defendant can possibly avoid partial or even full liability by establishing that the plaintiff contributed to the accident in some way.

The judge or jury in the case must determine where the negligence lies. It could be found that either the defendant or even the plaintiff was wholly negligent, or more commonly, that each shares some portion of responsibility for the accident. Having established where the negligence lies, compensation (if any) can then be awarded to the plaintiff, but whether and how it is awarded depends on the negligence laws of the state in which the action is brought.

Across the 50 US states, and in the District of Columbia, there are four systems used to determine damage awards in car accident lawsuits:

  1. Pure Contributory Negligence.
  2. Pure Comparative Negligence.
  3. Modified Comparative Negligence – 50% Rule.
  4. Modified Comparative Negligence – 51% Rule.

The following provides an explanation of each system.

Pure Contributory Negligence

Contributory negligence can be used as a common law defense in auto tort claims in all US jurisdictions. The concept of contributory negligence is that a defendant’s liability for negligence can be reduced or even avoided if it can be established that the plaintiff contributed in some way to the event which caused the damages. Contributory negligence means negligence contributed by a plaintiff or a defendant.

Historically, if contributory negligence by a plaintiff could be established by a defendant, even to a minor degree, then the defendant had a complete defense to the lawsuit and the plaintiff would be entitled to no damages whatsoever. For example, if a defendant established that a plaintiff contributed just 1% to the cause of the damage, then the defendant would have no liability at all to pay any compensation.

This historical approach to negligence claims still exists today in four US states (Alabama, Maryland, North Carolina and Virginia), and in the District of Columbia. The system is called Pure Contributory Negligence, for the reason that (as in the example above) if a defendant in an auto accident lawsuit can establish that the plaintiff contributed just 1% or more to the cause of the accident, then the defendant has a complete defense to the lawsuit, and consequently the plaintiff would have no entitlement to any award of damages against the defendant at all.

For example, let’s say that you live in a state in which pure contributory negligence applies. You run a red light one day, and you crash into the side of another car which has driven through the intersection on a yellow light. The other driver takes a lawsuit against you for damages, but it is found that the other driver could have safely stopped on the yellow signal (as other cars beside it did) but chose not to. The court finds that the other driver contributed to the accident by that action, and therefore dismisses the lawsuit. You walk free from the court.

Over the years, the vast majority of states came to view the pure contributory negligence system as unduly harsh, even unjust, to many claimants. They changed their systems to ones in which awards for damages were made in proportion to the extent to which each party was found to have contributed to the damage caused. However, they did not all change to the same system, resulting in the three alternative approaches which exist today.

Pure Comparative Negligence

The system of Pure Comparative Negligence is one in which damages are awarded to a plaintiff in a car accident lawsuit in direct proportion to the percentage contribution which the defendant makes to the cause of the accident. In this system there are no thresholds as such, and awards of damages can be made from 0% to 100% inclusive of the amount claimed.

For example, let’s say that you live in a state in which the laws of pure comparative negligence apply. You are driving down the road in a line of traffic and the car immediately in front of you suddenly brakes to turn into a driveway, but does so without indicating. You rear end the turning car, causing significant damage to that car.

The driver sues you for $12,000 in damages, including repair costs, rental car costs and time off work. The judge finds that the plaintiff was one-third responsible for the accident by failing to indicate, and that you were two-thirds responsible for rear-ending the other car. He awards damages against you of $8,000, being two-thirds of the amount claimed.

In a state in which pure comparative negligence applies, you could have damages awarded against you in a car accident lawsuit even if it is found that the plaintiff was substantially responsible for the accident. For example, if it is found that a plaintiff was 85% responsible for a car accident in which you were involved, and you were responsible to the extent of just 15%, then the plaintiff would gain an award against you of 15% of the assessed damages.

The system of pure comparative negligence applies in 13 US states, as follows:

  • Alaska
  • Arizona
  • California
  • Florida
  • Kentucky
  • Louisiana
  • Mississippi
  • Missouri
  • New Mexico
  • New York
  • Rhode Island
  • South Dakota
  • Washington

Modified Comparative Negligence

The remaining 33 states use a Modified Comparative Negligence system. This system is one of comparative negligence modified to the extent of using thresholds above which a plaintiff is prohibited from recovering damages. There are two such modified systems in use, the first being referred to as the Modified Comparative Negligence – 50% Rule system. This system is the same as the pure comparative negligence system, except that if it is found that a plaintiff contributed 50% or more to the cause of a car accident then the plaintiff would be barred from receiving any award for damages whatsoever.

The following 12 states have adopted the Modified Comparative Negligence – 50% Rule system for awarding damages in auto accident lawsuits:

  • Arkansas
  • Colorado
  • Georgia
  • Idaho
  • Kansas
  • Maine
  • Nebraska
  • North Dakota
  • Oklahoma
  • Tennessee
  • Utah
  • West Virginia

The second modified system is the Modified Comparative Negligence – 51% Rule system. This system is the same as the pure comparative negligence system, except that if it is found that a plaintiff contributed 51% or more to the cause of a car accident then the plaintiff would be barred from receiving any award for damages whatsoever.

The following 21 states have adopted the Modified Comparative Negligence – 51% Rule system for awarding damages in auto accident lawsuits:

  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Indiana
  • Iowa
  • Massachusetts
  • Michigan
  • Minnesota
  • Montana
  • Nevada
  • New Hampshire
  • New Jersey
  • Ohio
  • Oregon
  • Pennsylvania
  • South Carolina
  • Texas
  • Vermont
  • Wisconsin
  • Wyoming

State-by-State Summary

The table below provides a comparison of all four negligence systems by state. It is important to note that, within the four types of systems, there are many variants at state level, including limitations on the types of cases to which the negligence systems can be applied. Further details on these variations and limitations can be obtained from your state insurance office.

State Pure
Contributory
Pure
Comparative
Modified
Comparative
50% Rule
Modified
Comparative
51% Rule
Alabama   
Alaska   
Arizona   
Arkansas   
California   
Colorado   
Connecticut   
Delaware   
District of Columbia   
Florida   
Georgia   
Hawaii   
Idaho   
Illinois   
Indiana   
Iowa   
Kansas   
Kentucky   
Louisiana   
Maine   
Maryland   
Massachusetts   
Michigan   
Minnesota   
Mississippi   
Missouri   
Montana   
Nebraska   
Nevada   
New Hampshire   
New Jersey   
New Mexico   
New York   
North Carolina   
North Dakota   
Ohio   
Oklahoma   
Oregon   
Pennsylvania   
Rhode Island   
South Carolina   
South Dakota   
Tennessee   
Texas   
Utah   
Vermont   
Virginia   
Washington   
West Virginia   
Wisconsin   
Wyoming