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Contributory and Comparative Negligence: Defenses in Car Accident Cases

Created by FindLaw's team of legal writers and editors.

When a car accident occurs, there may be two or more drivers who were actually at fault. Two main theories of negligence were developed in order to address this fact, comparative and contributory negligence. The majority of states now use a comparative negligence theory. Read on to learn more about how these theories differ.

Comparative Negligence

In states that utilize comparative negligence theories of liability, individuals may sue another motorist whether or not their own negligence played any role in the accident. However, 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."

For example, a motorist makes a left-hand turn in his car without using a turn signal and is struck by an oncoming vehicle that’s traveling 10 mph over the speed limit. Assume that the turning motorist sues the speeding driver for $100,000 in damages. At trial, a jury will be asked to determine what percentage of the accident was caused by the speeding and what percentage of the accident was caused by the turning driver's failure to operate the turn signal.

Let's assume that the jury finds that the turning driver's own negligence contributed to the accident by 30% and the negligence of the other driver contributed to the accident by 70%. If the jury agrees that damages are worth $100,000, the turning motorist would only be able to recover $70,000 in damages (or $100,000 minus the 30% caused by his own negligence).

If, however, the turning driver's negligence was found to have contributed 70% to the accident, than he could only recover $30,000 for the 30% fault for which the jury found the other driver was responsible. The turning motorist only collects when he is 70% at fault in states that apply a "pure comparative negligence.” This method allows you to recover no matter how negligent you were. 

Some states have changed comparative negligence principles to permit a person to collect in a lawsuit only if he or she is found to be less than 50% at fault. See this article for more on the types of comparative negligence.

Contributory Negligence

Few states have kept the common law defense of contributory negligence, only Virginia, Alabama, D.C., Maryland, and North Carolina. Contributory negligence is significant to automobile accident liability because individuals in states with this law can’t sue someone for injuries or damages if they also contributed to the accident by their own negligence.

Using the example above, the motorist who turned left in front of the speeding car without signaling can’t sue the speeding driver for damages because he failed to use his turn signal and the speeding motorist didn’t know that the other motorist was going to turn in front of him. Under a theory of contributory negligence, his own negligence contributed to the accident, and, therefore, bars his right to recover anything from the other motorist. This situation is called "pure contributory negligence."

A few states have kept a theory of "modified contributory negligence" in which individuals may file suit against another person involved in an accident only if his or her own negligence contributed to the accident by less than 50%.

Claiming Contributory or Comparative Negligence? Talk to a Lawyer First

Rarely is there a simple answer when two parties are at least partially at fault in a car accident. This is where an attorney can be most helpful. Don't take matters into your own hands; reach out to an experienced, local car accident attorney today.

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