Overview of Contributory and Comparative Negligence
To begin with, what does negligence mean? The tort of negligence is an area of law that creates liability for people that fail to take reasonable care in avoiding injury or loss to another person. Generally, ordinary negligence occurs when someone does not act as a reasonable person would in certain circumstances. Proving negligence requires a showing of four elements: duty, breach, causation, and damages.
Negligence law carves out an area for defenses that may apply when the plaintiff contributes in some way to his or her injury, in other words, when the plaintiff is also negligent. These defenses are known as contributory and comparative negligence/fault. If one of these two defenses apply to your case, it may completely bar the plaintiff from recovery or it may only reduce the amount of recovery.
Both concepts of contributory and comparative negligence provide a way to allocate fault between plaintiff(s) and defendant(s). Whether contributory or comparative negligence applies usually depends on the state the litigation is taking place. Contributory negligence completely bars a plaintiff from recovery if he or she is even a little bit negligent in causing the injury. On the other hand, comparative negligence allows a plaintiff to recover even if he or she was somewhat negligent, too. It is important to note that “contributory” and “comparative” fault/negligence are often used by state legislatures interchangeably, but they do still have distinct meanings.
Florida is a pure comparative negligence state. What this means is, if the plaintiff in a negligence action is at fault, the percentage of that fault will diminish the amount of their recovery proportionately. For example, let’s say Plaintiff and Defendant get into a car accident. Plaintiff is found to be 10% at fault and Defendant is 90% at fault. Plaintiff’s recovery will reduce by 10%. In other words, Plaintiff is only entitled to 90% of the total monetary recovery.
Florida Statute 768.81(2) states the following: “Effect of Contributory Fault—In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.”
FAQ about Contributory and Comparative Negligence
How many states have contributory negligence?
This is a difficult question to answer because there are many different types of contributory negligence and sometimes the term “contributory” is used interchangeably with “comparative.” For example, a state may be a “comparative negligence” state for all intents and purposes, but the legislature uses the phrase “contributory negligence.”
To best answer this question, we will begin by explaining the four systems used in the United States to establish damage awards (i.e. contributory/comparative negligence):
- Pure contributory negligence
- Pure comparative negligence
- Modified comparative negligence
- Slight/Gross negligence comparative fault system
Every state jurisdiction has one of these four systems in place to establish damage awards (in other words, to establish how much money the plaintiff should get in a negligence action).
Pure contributory negligence — If this is the system used in your state, then if the plaintiff contributes to the negligence even in the slightest amount, he or she may not recover (i.e. plaintiff loses). This system has been criticized for being too harsh. For example, it doesn’t allow compensation for a plaintiff who was 1% at fault and the defendant at 99% fault. Only five states use this system (AL, DC, MD, NC, VA).
Pure comparative negligence — This system apportions the damages to the plaintiff in proportion to each parties’ share of fault. This system has been criticized for allowing plaintiffs who are primarily at fault to recover from a defendant who is less at fault. For example, it allows recovery for a plaintiff who was 99% at fault and the defendant was 1% at fault. Only twelve states use this system (AK, AZ, CA, FL, KY, LA, MS, MO, NM, NY, RI, WA).
Modified comparative negligence — This system apportions fault according to each party’s own percentage of fault, unless the plaintiff’s negligence percentage reaches a certain number (e.g. 50% or 51%). For example, some states follow the 50% rule, and when a plaintiff is at 50% or more at fault, they cannot recover, but if he or she is at 49% or less, the plaintiff can recover. (That same notion applies for the states that use the 51% rule: if plaintiff’s fault is at 51% fault or more, he or she cannot recover). This is the majority system used in the United States; 33 states use some version of modified comparative negligence (AR, CO, GA, ID, KS, ME, NE, ND, TN, UT, CT, DE, HI, IL, IN, IA, MA, MI, MN, MT, NV, NH, NJ, OH, OK, OR, PA, SC, TX, VT, WV, WI, WY).
Slight/gross negligence comparative fault system — This system is only used by one state (South Dakota). The fault of the plaintiff and defendant is only compared if the plaintiff’s negligence is slight and the defendant’s negligence is gross.
Why was contributory negligence developed?
Pure contributory negligence was developed as a defense in tort law. The traditional way contributory negligence worked was as follows: if two people are in a car accident, the person injured can only get compensated from the other person if the injured person did not contribute to the accident in any way. That is why if you did contribute to the accident, it could be used as a defense (hence the term contributory negligence). Only five states today follow this way of using contributory negligence. (AL, DC, MD, NC, VA).
Both concepts of contributory and comparative negligence provide a way to allocate fault between plaintiff(s) and defendant(s). Whether contributory or comparative negligence applies usually depends on the state the litigation is taking place. Contributory negligence completely bars a plaintiff from recovery if he or she is even a little bit negligent in causing the injury. On the other hand, comparative negligence allows a plaintiff to recover even if he or she was somewhat negligent, too.
Signs of Contributory and Comparative Negligence
Signs of contributory negligence are the same signs as for ordinary negligence, except on the part of the plaintiff, instead of the defendant. The same elements apply in contributory negligence as in ordinary negligence: duty, breach, causation, and damages. You are looking for the plaintiff’s lack of reasonable care in causing the injury.
How to Prove a Negligence Claim
In any tort claim, there are elements that must be proven to the court to establish the defendant’s liability (i.e. tort liability). Negligence falls under the umbrella of tort law. Thus, in order to prove that a defendant was negligent, you must prove all four elements of negligence:
- breach of duty
You must prove all four and not just one or two of the elements.
The first element that must be proven is whether the defendant owed a “duty of care” to the plaintiff. The duty of care is a standard in tort law to act as a reasonable person. This duty of care can be owed by a person or a business. For example, landlords who owe a duty of care to those who come on the property, and business owners who owe a duty of care to those who enter the business, including employees and customers.
Breach of Duty:
The second element that must be proven is that the duty of care was breached by the defendant acting (or failing to act) in a certain way. For instance, if a landlord breaches the duty of care by failing to install handrails on a staircase, then the second element has been met.
The third element, causation, is that the plaintiff must prove that the defendant’s actions (or inaction) caused the plaintiff’s injury. In other words, the defendant must have caused the harm to occur.
Causation splits into two types:
- actual cause
- proximate cause
A plaintiff must establish both types of causation in order to prove the element of causation.
- Actual cause is exactly what it sounds like: did the defendant actually cause the harm? Actual cause is sometimes referred to as cause-in-fact.
- On the other hand, proximate cause is an extremely complex concept. Put simply, proximate cause asks whether the defendant’s actions (or inactions) caused a foreseeable consequence. Proximate cause is sometimes referred to as legal cause.
The final element of proof of negligence is damages. For this element, the plaintiff must show that he or she was injured or suffered damage as a result of the defendant’s actions (or inactions). Damages can be proven by personal injury, property damage, and in some cases, punitive damages.
The concepts of contributory and comparative negligence are extremely complex and can be very difficult to understand. Every case has a unique set of facts that make it difficult to determine if, and how, contributory negligence applies to your case. Let us help you make that determination for you.