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Comparative v. Contributory Fault: What's the Difference?

By Daniel Taylor, Esq. on September 26, 2014

When it comes to personal injury lawsuits involving negligence, fault is often shared by both the person who was injured and the person who is being sued.

The law accounts for this shared fault scenario in different ways, depending on the rules of the state in which the accident occurs. Known as contributory negligence, a person's own level of fault in causing his injuries may lessen the amount of recovery possible in a personal injury lawsuit, or bar recovery entirely in some jurisdictions.

How do contributory negligence and its more modern counterpart, comparative negligence, work? Here's a general overview:

Traditional Contributory Negligence

Under traditional rules, a person who was found to have been even slightly negligent in causing an accident was barred from recovering any compensation for his injuries. This meant, for example, that a pedestrian injured in a car accident would be unable to recover against the driver if it was found that the pedestrian was even partially negligent in causing his own injury.

Now known as "pure" contributory negligence, this rule is still in effect in a minority of states. However, many states, looking to remedy the sometimes harsh results of the contributory negligence rule, have moved to a different approach known as comparative negligence.

Comparative Negligence

Under comparative negligence rules, a person is able to recover in proportion to his or her own fault. For example, a person who is 80 percent at fault for causing his own injury could still recover 20 percent of his damages from a defendant who was also found to be negligent.

Other states have adjusted their comparative negligence rules to only compensate those who are less at fault than others in causing their own injuries. Known as "modified" comparative negligence, this rule permits proportional recovery only if the person seeking to recover was less than a certain percentage (usually 50 percent) at fault of his own injuries.

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