Contributory negligence is when the actions of a party, the plaintiff, contributed in some way to an injury for which that party is suing another, the defendant. Contributory negligence completely negates any ability of the plaintiff to collect damages, generally money, for the accident from the defendant in a negligence lawsuit. 

Contributory negligence is a doctrine that defendants have historically used to help negate the plaintiff's lawsuit in what is called an affirmative defense. 

This rule has generally been replaced by comparative negligence, where the negligence of both parties is compared to determine the amount of damages a plaintiff can collect, in most districts across the U.S. However, Alabama, Maryland, North Carolina, Virginia, and Washington, D.C. still uphold contributory negligence.

An Overview of Negligence 

A judge may find a party negligent if the behavior of that party causes an unnecessary possibility of injury to another party. If another person is harmed on account of negligence, the negligent party is legally obligated to pay damages to the injured party. 

Each state's rules about joint and several liability, whether they follow contributory negligence or some form of comparative negligence, determine the amount of damages (if any) that the defendant has to pay the plaintiff. 

An Example of Contributory Negligence 

Susie was driving her car when she was abruptly cut off by a reckless driver, Tom, causing an accident in which she sustained a neck injury. At the time of the accident, Susie was going 67 miles per hour when the speed limit was 65 miles per hour. Under the doctrine of contributory negligence, Susie would not be able to collect damages from Tom for her injury or car, even though she was only speeding slightly, because her negligence contributed to the accident. The extent of Susie's injuries and Tom's recklessness would not be taken into consideration under contributory negligence. 

Problems With Contributory Negligence for Plaintiffs

As the example above illustrates, contributory negligence becomes a problem for badly injured plaintiffs when slight negligence on their part could result in the court not ruling in their favor. It would not matter that actions of the other party were grossly negligent; any contributing factor would negate the plaintiff's negligence case. Proving fault becomes very difficult in a negligence case under the contributory negligence rule. 

Due to the perceived unfairness of these rulings, more states in the past few decades started upholding comparative negligence as a tort rule. A tort simply means that the wrongdoing of one party can cause legal liability in civil cases. 

The Definition of Comparative Negligence 

Comparative negligence or fault allows courts to decide how negligent each party was and make a determination about the amount of damages a defendant would pay a plaintiff accordingly. There are two types of comparative negligence: 

  • Pure comparative negligence
  • Modified comparative negligence

With pure comparative negligence, the court tallies up the extent of the plaintiff's damages and subtracts a certain amount based on a percentage that represents the negligence of the plaintiff in causing the accident. Both Alaska and California uphold this doctrine, so a judge might subtract 1,500 dollars for a total damage amount of 10,000 dollars if he or she determines that the plaintiff was 15 percent responsible for the accident. Alternatively, a plaintiff who is 95 percent negligent could still gain 5 percent of damages from a defendant. 

In contrast, modified comparative negligence, the more popular of the two approaches, generally does not award a plaintiff money for damages if the plaintiff is more at fault than the defendant. For example, Colorado and Maine require that the plaintiff not be equally or more at fault for the accident in order for them to receive money from the defendant. In states like Hawaii and Iowa, a plaintiff could collect damages if found equally as responsible as the defendant, but not if that party is more so. Each state has slightly different rules. 

More About Contributory and Comparative Negligence

There are some legal steps that you can take to avoid being sued for negligence. Consider including a hold harmless clause in contracts, especially for high-risk ventures. Many people make the mistake of thinking that indemnity and hold harmless clauses are interchangeable, but many indemnity clauses do not protect against contributory or gross negligence.  

If you need help with understanding contributory or comparative negligence, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.