Comparative negligence
Encyclopedia
Comparative negligence, or non-absolute contributory negligence
outside of the United States
, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. When the defense is asserted, the fact-finder, usually a jury, must decide the degree to which the plaintiff
's negligence versus the combined negligence of all other relevant actors contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence
which disallows any recovery by a plaintiff whose negligence contributed, even minimally, to causing the damages.
The second and third versions are lumped together in what is called "modified" comparative negligence. One variant allows plaintiffs to recover only if the plaintiff's negligence is "not greater than" the defendant's (viz., the plaintiff's negligence must not be more than 50% of the combined negligence of both parties).
The other variant allows plaintiffs to recover only if the plaintiff's negligence is "not as great as" the defendant's (viz., the plaintiff's negligence must be less than 50% of the combined negligence). The apparently minor difference between the two modified forms of comparative negligence are thought by lawyers handling such cases to be significant in that juries who ordinarily assign degrees of fault are much less willing to award damages to a plaintiff who is equally at fault than to one who is less at fault than the defendant.
, for instance, has not adopted this. In Williams v. Delta Int'l Machinery Corp., , the court said: "[after] exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years." Maryland
, North Carolina
, Virginia
, and Washington, D.C.
continue to use contributory negligence as well.
Neither comparative negligence nor contributory negligence
should be confused with joint and several liability
which generally holds each of two or more culpable defendants responsible for all the damages sustained by a plaintiff. For practical reasons, a plaintiff who faces the defense of comparative negligence may wish to join all potentially culpable defendants in his action because the plaintiff's negligence will be balanced against the combined negligence of all defendants in apportioning damages, even though the plaintiff may not be able actually to get compensation from some of them--for example where an insolvent individual and a major corporation were both negligent in causing plaintiff's harm.
Contributory negligence
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff/claimant has, through his own negligence, contributed to the harm he suffered...
outside of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. When the defense is asserted, the fact-finder, usually a jury, must decide the degree to which the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
's negligence versus the combined negligence of all other relevant actors contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence
Contributory negligence
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff/claimant has, through his own negligence, contributed to the harm he suffered...
which disallows any recovery by a plaintiff whose negligence contributed, even minimally, to causing the damages.
Explanation
Prior to the late 1960s, however, only a few states had adopted this system. When comparative negligence was adopted, three main versions were used. The first was called "pure" comparative negligence. A plaintiff who was, say, 90% to blame for an accident could recover 10% of his losses. (Of course, if the defendant suffered injuries in such a case, he/she could counter claim and recover 90% of his/her losses from the other party.)The second and third versions are lumped together in what is called "modified" comparative negligence. One variant allows plaintiffs to recover only if the plaintiff's negligence is "not greater than" the defendant's (viz., the plaintiff's negligence must not be more than 50% of the combined negligence of both parties).
The other variant allows plaintiffs to recover only if the plaintiff's negligence is "not as great as" the defendant's (viz., the plaintiff's negligence must be less than 50% of the combined negligence). The apparently minor difference between the two modified forms of comparative negligence are thought by lawyers handling such cases to be significant in that juries who ordinarily assign degrees of fault are much less willing to award damages to a plaintiff who is equally at fault than to one who is less at fault than the defendant.
Contributory negligence doctrine
Some states, though, still use the contributory negligence doctrine when evaluating negligence in a tort. AlabamaAlabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
, for instance, has not adopted this. In Williams v. Delta Int'l Machinery Corp., , the court said: "[after] exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years." Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
, Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
, and Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
continue to use contributory negligence as well.
Neither comparative negligence nor contributory negligence
Contributory negligence
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff/claimant has, through his own negligence, contributed to the harm he suffered...
should be confused with joint and several liability
Joint and several liability
Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be:* jointly liable, or* severally liable, or* jointly and severally liable.-Joint liability:...
which generally holds each of two or more culpable defendants responsible for all the damages sustained by a plaintiff. For practical reasons, a plaintiff who faces the defense of comparative negligence may wish to join all potentially culpable defendants in his action because the plaintiff's negligence will be balanced against the combined negligence of all defendants in apportioning damages, even though the plaintiff may not be able actually to get compensation from some of them--for example where an insolvent individual and a major corporation were both negligent in causing plaintiff's harm.