Comparative negligence and contributory negligence are allegations sometimes raised by the defense in response to a personal injury or other types of lawsuit where the plaintiff claims the defendant acted negligently. When a defendant alleges comparative or contributory negligence as an affirmative defense, he is claiming that the plaintiff did something to cause the wreck.
Sometimes it is hard to determine who is at fault after an auto accident. Contributory negligence and comparative negligence are two different approaches for allocating fault between parties that have been in an accident. Texas follows the comparative negligence model, specifically, “modified” comparative negligence. Thus, comparative negligence will be discussed first.
What is Comparative Negligence?
Most states have chosen to adopt the comparative negligence approach. Traditional contributory negligence was considered harsh because the plaintiff could not recover any damages even if the plaintiff was only 1% at fault. (See below)
Under the “comparative negligence” approach, a jury assesses each parties individually. There are two approaches for comparative negligence:
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Pure Comparative Negligence:
Pure comparative negligence allows a negligent plaintiff to recover even when her negligence exceeds the Defendant’s negligence. The court totals the plaintiff’s injury and then reduces the plaintiff’s recovery based on her contribution to the injury.
Example: If the jury finds that Haley (the Plaintiff) is 60% at fault for the accident and she has $100,000 of damages she will recover $40,000.
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Modified Comparative Negligence:
There are two different types of modified comparative negligence.
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The 51% Bar – Texas Rule
Under this model, the plaintiff can recover so long as the plaintiff’s negligence is not greater than 50%. This is sometimes referred to as the 51% bar. This is the approach that Texas has adopted.
Example: If the jury finds that Haley (the Plaintiff) is 50% at fault and her damages are $100,000 she will recover $50,000. However, if Haley is found 51% at fault, she collects nothing. If Haley were found 30% at fault, she would collect $70,000.
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The “50% Bar Rule”
Under this model, the plaintiff can recover only if her share of negligee is less than 50%. Under this rule, if the plaintiff is 50% responsible the plaintiff recovers nothing. This is sometimes referred to as the 50% bar.
Example: if the jury finds that Haley is 50% at fault and her damages are $100,000 she will recover $0.
What is Contributory Negligence?
Jurisdictions that follow the contributory negligence rule, bar the plaintiff from recovering if the plaintiff was negligent in any what whatsoever. Any failure of the plaintiff to exercise ordinary care will bar the plaintiff’s recovery from the defendant.
Example: Debbie is operating the vehicle and fails to stop at a crosswalk. Haley walks into the crosswalk without looking. A jury determines Debbie is 99% at fault and Haley is 1% at fault. If contributory negligence applies Haley would not be allowed to recover from Debbie because Haley was negligent when she failed to look before crossing the street. If Haley has $100,000 in damages, she will recover $0.
Questions about Comparative Negligence and Contributory Negligence?
If you have been involved in a car wreck or other type of personal injury and the defendant is claiming you did something wrong, you should consult an experienced personal injury lawyer to help prosecute your case and answer any questions.
