Comparative Negligence

What Is Comparative Negligence?

Comparative negligence is a principle of tort law that applies to casualty insurance in certain states. Comparative negligence states that when an accident occurs, the fault and/or negligence of each party involved is based upon their respective contributions to the accident. This allows insurers to assign blame and pay insurance claims accordingly.

Understanding Comparative Negligence

Comparative negligence is most commonly used to assign blame in auto accidents. If two drivers both break the same traffic laws in an accident, then both may be denied their claims. Many insurance carriers assign blame between drivers on a percentage basis, such as 70/30.

If two parties are involved in a car accident, the insurers use comparative negligence to assign fault. Determining fault in an accident is a critical aspect of insurance. Insurance companies litigate to ensure that they are only liable for damages caused by their insured client. In addition, defense lawyers will attempt to limit responsibility to the smallest extent possible. Reviewing actions that led to an accident, insurers and the courts determine how to assign fault. That process is the essence of comparative negligence. The determination of fault will ultimately lead to deciding how much the insurer must pay.

The damages are awarded proportionally based on the degrees of determined negligence. The party who is found less responsible still has a percentage of the blame assigned to them. The percentage of negligence attached to the less responsible party is called contributory negligence. In the situation of a lawsuit resulting from a car accident, the contributory negligence would be the plaintiff's failure to exercise reasonable care for their safety. In this relatively common situation, defendants use contributory negligence as a defense.

Types of Comparative Negligence

Broadly, there are three types of comparative negligence rules followed within different jurisdictions in the United States. They depend on the percentage of negligence assigned to parties involved in an accident.

Pure Comparative Negligence

The pure comparative negligence rule allows the plaintiff to recover damages even if they are assigned 99% fault for the accident. In such a case, the plaintiff can still recover 1% of the damages assessed from the defendant. Thirteen states, including California and New York, follow this rule.

Modified Comparative Negligence

The modified comparative negligence rule disallows plaintiffs from recovering monetary damages if they are assigned at fault beyond a certain percentage. Ten states, including Colorado and Maine, follow the 50% bar rule. This means a plaintiff is not allowed to recover damages if their fault percentage for an accident is 50% or more. Twenty-three states, including Illinois and Oregon, follow the 51% bar rule, meaning plaintiffs cannot recover if their fault percentage is 51% or greater.

Slight/Gross Negligence

South Dakota is the only state to recognize the slight/gross negligence rule. In this rule, fault percentages assigned in an accident are replaced by "slight" and "gross" contributions to an accident. In effect, the amount of an award in an accident is greater if a plaintiff's contribution to an accident is slight and the defendant's contribution is gross. Gross, in this context, means reckless and conscious disregard for the injured party's safety.

Conversely, the injury amount awarded to a plaintiff is less if their contribution to an accident was more than "slight." As an example, if a car that jumped a traffic signal injures a jaywalker, then the jaywalker will be awarded less in damages than if they were crossing a green traffic light.

Four states, including Maryland and Alabama, and one jurisdiction, Washington D.C., follow the pure contributory negligence rule. In this rule, a plaintiff is barred from recovering damages if they contributed even slightly to an accident.

Special Considerations

Comparative negligence is a kind of negligent tort. The term negligent tort encompasses harm done to people generally through the failure of another to exercise a certain level of care, sometimes defined as a reasonable standard of care. Accidents are a standard example of negligent torts.

Negligent torts represent one of three categories of tort law that are generally used to understand the system. The other two are intentional torts and liability torts. An intentional tort refers to harm done to people intentionally by the willful misconduct of another, such as assault, fraud, and theft. Unlike negligence and intentional torts, strict liability torts focus on the act itself as opposed to the culpability of the person doing the harm.