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Car Accidents: Contributory & Comparative Negligence

In the wake of an auto accident, the steps to be taken by a person who has been injured may not be immediately clear. The laws for determining fault in an accident vary by state but an important factor is whether contributory or comparative negligence will apply if the case goes to trial.

What Is Negligence, and How Does It Affect a Claim?

After a car accident, one of the most important and difficult factors is the determination of fault. Being found responsible for an accident could mean having to pay damages or higher insurance premiums.

Negligence is generally defined as the failure to use reasonable care that causes harm to another. Examples of negligence in the context of a car accident could involve actions which actively break the law such as speeding, running through a red light, or swerving outside of the designated lane. Negligence can also take the form of driving at night without headlights on, failing to replace burned-out turn signals or faulty brakes or not stopping for a pedestrian.

To prove a negligence claim, a victim must show that:

  • the defendant owed a duty of care
  • the defendant failed to uphold that duty
  • the victim was harmed
  • the harm was the result of the defendant's behavior.

All drivers have a duty of care to other drivers on the road. Thus it must be established by a preponderance of the evidence that a defendant breached that duty. It must then be established that this breach caused the plaintiff’s harm. Eyewitness testimony, surveillance cameras, police investigation reports and other types of evidence can be used. The harm can include injuries, property damage and lost wages among other losses. Finally, the plaintiff must prove the extent of the damage that was caused. This could be documented by a mechanic's repair estimate, a hospital bill or proof of missed work.

Contributory Negligence

Alabama, Virginia, Maryland, North Carolina and the District of Columbia use the concept of contributory negligence to evaluate a car accident lawsuit. Under this negligence theory a plaintiff who bore any degree of responsibility whatsoever for the accident may be denied recovery entirely.

Comparative Negligence

All other states implement a more nuanced form of negligence known as comparative negligence. This theory recognizes that a number of factors can contribute to an accident and determines shared responsibility based upon the facts of the case.

Pure vs. Modified Comparative Negligence

Several states, including Arizona, California, Florida and New York, are governed by what is known as "pure comparative negligence." In these jurisdictions, even plaintiffs who were 99 percent responsible for the accident can recover damages.

The remaining states have adopted the principle of "modified comparative negligence." Under this theory, plaintiffs can recover damages unless they have been determined to be 50 percent at fault (12 states) or greater than 50 percent at fault (21 states). In all such cases, however, the amount of damages will be reduced by the percentage of fault ascribed to the plaintiff.

Hypothetical Contributory Negligence Case

Imagine an accident on a Virginia highway involves a driver who was speeding and who is hit head-on by a car going the wrong way. Since Virginia is a contributory negligence state, the speeding driver will be unable to recover damages even if the accident was caused by the wrong-way driver.

Hypothetical Comparative Negligence Case

In a Nevada accident, a car being driven by a person who is impaired crashes into the side of a car that made an illegal turn in front of it. The impaired driver sues the other motorist and seeks $100,000 in damages. The jury determines that the impaired driver bore a 40 percent share of responsibility, and while concluding that the defendant was at fault, reduces the award to $60,000.

Comparative vs. contributory negligence laws can be complicated. People who have been injured in a car accident may want to meet with an experienced personal injury attorney in order to learn what recourse they may have.

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