Defenses to Tort Liability: Comparative and Contributory Negligence

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 What Is Comparative and Contributory Negligence?

The majority of personal injury cases are based on a legal theory found in tort law that is known as the theory of negligence. The theory of negligence essentially states that when an individual or entity owes a duty to act reasonably towards others and fails to uphold this duty, then an injured party may be able to file a lawsuit against them. This can be done for the purposes of recovering damages in civil court.

Negligence theory has a long history in American common law. Over time, many defenses and exceptions have been developed to deal justly with situations that are deemed to be more complex than the norm (i.e., simple negligence). Two of the greatest defenses are that of contributory and comparative negligence. These defenses permit a jury or judge to consider the percentage that a plaintiff is at fault for causing an accident, rather than only a defendant.

The doctrines of contributory and comparative negligence also help to define and reduce or deny the amount of damages that a plaintiff can recover in monetary damages. While each state has its own set of rules and requirements for negligence, there are general guidelines that underlie the overall legal theory of negligence.

Thus, to learn more about the specific rules and requirements for negligence in your jurisdiction, you should speak to a local personal injury attorney for further legal advice. The rest of the article will offer a broad discussion of comparative and contributory negligence defenses. Therefore, you should also speak to an attorney if you are involved in a dispute over a negligence-related issue, so you can receive guidance that is tailored to your matter.

What Is Negligence?

In the United States, civil tort law generally divides causes of action into two main categories: intentional (e.g., assault, battery, etc.) and unintentional. There is also a category for strict liability torts, but those are for more specific causes of action. Within the category of unintentional torts, negligence is one of the most common causes of action. As such, it is often cited as the basis of many personal injury cases.

Some examples of situations in which negligence may be used as the foundation of a claim include slip and fall accidents, dog bite cases, medical malpractice, and motor vehicle collisions. As may be evident from this list, the components of negligence can be applied to a wide variety of circumstances.

Additionally, while each state may define the prima facie case for negligence slightly different from one another, nearly all jurisdictions in the U.S. require the plaintiff to demonstrate four basic elements in order to prove negligence.

The first element that a plaintiff must show is that the defendant owed them a duty of care. The second element the plaintiff needs to show is that the defendant has breached this duty. The third element involves proving that the defendant was both the actual and proximate cause of the plaintiff’s injuries.

Lastly, the fourth and final element to prove negligence is that the plaintiff must show that they suffered actual damages as a result of the defendant’s negligent actions.

What Is Contributory Negligence?

Contributory negligence is the older version of the two main theories of negligence. In fact, it is so old that its roots can be found in the English common law. The doctrine of contributory negligence states that if a plaintiff is deemed to be at all negligent in the incident in question, then they may not recover any percentage of damages from the defendant in the case. This is referred to as a total bar on damages.

In other words, if a judge or jury finds that the plaintiff was even as much as one percent at fault for the accident, then they cannot recover any damages for their injuries. Over the years, states have gradually replaced contributory negligence with other standards of negligence due to its extreme measures.

As of September 2021, the only states that still use a pure contributory negligence doctrine include the following five jurisdictions: Alabama, Maryland, North Carolina, Washington D.C., and Virginia.

What Is Comparative Negligence?

On the other hand, states that do not follow the rules of contributory negligence use one of the following modern approaches under a theory of comparative negligence. Similar to contributory negligence, these three approaches also help to define and reduce the monetary damages that one may owe to a plaintiff who prevails in a negligence case. Again, negligence is often the legal theory used as the basis of a personal injury lawsuit.

The three primary approaches to comparative negligence include:

  1. Pure Comparative Negligence (The 99% Rule): The theory of pure comparative negligence will not bar a plaintiff from recovering damages, even if a judge or jury finds that they are ninety-nine percent at fault for the accident in question. The amount they can receive in monetary damages will be reduced by the percent at which they are at fault. For instance, if a plaintiff sues someone for $100,000, but is found to be seventy percent at fault, they may still be permitted to recover $30,000 in damages.
    • Pure comparative negligence is sometimes called the 99% rule because a plaintiff can recover damages, so long as they are ninety-nine percent or less at fault for the accident. As of September 2021, there are twelve states that follow the pure comparative negligence approach. The states that use this approach include:
      • Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington.
  2. Modified Comparative Negligence (The 50% Rule): The modified comparative negligence approach, also known as the 50% rule, bars a plaintiff from recovering damages if they are found to be fifty percent or more at fault for the incident in question. If they are deemed to be forty-nine percent or less negligent, then they will be able to recover damages assuming they can prove their case.
    • Similar to pure comparative negligence, the amount that a plaintiff can recover will be reduced by the percentage that they are found to be at fault for the incident. As of September 2021, there are thirteen states that use the modified comparative negligence approach, which include the following states:
      • Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Utah, and West Virginia.
  3. Modified Comparative Negligence (The 51% Rule): Much like the 50% rule that was just discussed, the same guidelines apply only now a plaintiff will be barred from recovering if they are found to be fifty-one percent or more at fault for the incident in question, as opposed to fifty percent. Accordingly, an injured party will be able to recover damages if a judge or jury deems that they are fifty percent or less at fault for the accident.
    • While the difference between the two approaches may seem small, the rationale behind the 51% rule is that when a plaintiff and defendant are equally to blame for the plaintiff’s injuries, then the plaintiff should still be allowed to seek relief, even if the amount they receive will be reduced. As of September 2021, there are twenty states that use the fifty-one percent rule, which include:
      • Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, Texas, Vermont, Wisconsin, and Wyoming.

The only state that does not conform to any of the theories of negligence mentioned thus far in this discussion is South Dakota. South Dakota is an outlier in that it uses its own set of negligence rules. The rule that the state of South Dakota uses is known as the Slight Gross negligence standard. This means that a plaintiff can only recover damages if they were slightly negligent.

Although the tort laws in South Dakota fail to clearly define or provide a set percentage for what is considered to be “slightly negligent”, the state Supreme Court has found that it usually falls somewhere around thirty percent. However, this may not be true in every situation and thus this standard is applied on a case-by-case basis.

Finally, it should be noted that a handful of states may impose a combination of the approaches in the above list. As previously mentioned, these modern approaches typically dictate the rules for damages as well as can be used to predict the outcome of a case. Therefore, it is important that a plaintiff consult with a personal injury attorney who practices law in their area if they intend to take legal action against a negligent party.

Not only will a personal injury attorney be able to provide legal representation in court, but an attorney can also discuss which one may be the best approach to use for one’s case.

Do I Need An Attorney For My Negligence Case?

As is the case with any legal dispute, a matter can become increasingly complicated rather quickly. Such situations are made even more stressful if you are also dealing with medical costs, serious injuries, and/or facing the prospect of losing your job. Hence, why you should consider retaining the services of a local tort attorney if you intend to take legal action against another party whose conduct may have been negligent and caused you harm.

An experienced personal injury attorney can review the facts of your case and can use their analysis to determine whether you have a viable enough claim to file a lawsuit against a negligent actor. Your attorney can also assist you in developing a proper legal strategy to possibly recover damages for your injuries and can serve as your advocate throughout every stage of your case.

Additionally, if your case is successful, your attorney can make sure that you receive the full and fair compensation that you deserve based on the facts of your case.

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