Car Accident Defenses: Contributory and Comparative Negligence

Your financial recovery may be limited if your own negligence played a part in causing your accident.

Determining who is at fault for a car accident can be a difficult process. You must first prove that the other driver was negligent. But even if you can do this, the other driver can still avoid partial or full liability by establishing a viable defense under shared fault rules like contributory or comparative negligence. For example, say Dan is driving at night and hits Ann, a pedestrian, after Ann suddenly and unexpectedly darts into the intersection. In this scenario the question of who is at fault is not clear-cut, as both Dan and Ann may have contributed to the accident.

Shared fault rules depend on where the car accident took place. Here's a primer on these defenses and how they work. (Get the basics on car accidents caused by negligence.)

Comparative Negligence: A "Partial" Defense

The comparative negligence system allocates fault between the parties involved in an accident. Under comparative negligence (some version of which has been adopted by most states) a defendant can raise a partial defense, saying that the plaintiff was partially at fault for the accident too.

For example, say that Dan is making a left turn and hits Ann, who is driving over the speed limit. Ann sustains injuries and sues Dan for negligence. Under a comparative negligence system, Dan may be found 80% at fault for failing to make a safe left turn, and Ann may be found to be 20% at fault for speeding. If Ann's total losses ("damages") amount to $100,000, Ann will receive $80,000 instead of the total amount—her amount is reduced according to her degree of fault (20%).

Different states have different comparative negligence rules. Comparative negligence rules differ from state to state. Most have adopted some form of the two rules described below.

  • Pure comparative negligence. In "pure" comparative negligence jurisdictions (including California, Florida, and New York), accident victims can recover some compensation for their injuries no matter how negligent they were, even where their degree of fault is higher than the defendant's degree of fault.
  • Modified comparative negligence. In "modified" comparative negligence states, an accident victim's recovery is limited if the victim's fault exceeds a certain degree. For example, in some states an accident victim can only recover damages if his or her fault is less than that of the defendant—that is, the accident victim must be less than 50% responsible for the accident in order to recover. This rule is in place in states like Colorado and Georgia. In other states (including Illinois, Massachusetts, Michigan, and Ohio), the accident victim must be 50 percent or less at fault in order to recover anything from other at-fault parties.

Contributory Negligence

If you're injured in a car accident in one of the few states that still use the contributory negligence system (Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.), you may be in for a surprise (not the good kind) if your own negligence contributed to the crash.

The doctrine of contributory negligence essentially bars an accident victim from recovering any compensation if the defendant can prove that the plaintiff acted negligently and contributed to the accident in any way. The contributory negligence doctrine leads to harsh results because it denies compensation to accident victims even if their degree of fault is slight. That's one reason why only a few states still follow this rule.

Establishing the Accident Victim's Negligence

So, what does it mean to say that the accident victim was negligent?

Every person using the road—pedestrian, motorist, bicyclist, and passenger—is required to use reasonable care to protect his or her own safety as well as the safety of others. If a car accident victim fails to protect his or her own safety and the safety of others, that person may be deemed negligent and therefore at fault for his or her own injuries.

Examples of plaintiff conduct that might amount to "negligence" include:

  • as a driver, speeding
  • as a pedestrian, jaywalking or making sudden or unexpected movements
  • riding with a driver that you know is drunk, reckless, or sleepy
  • riding in a car that you know is defective (for example, without working headlights), and
  • interfering with the driver's operation of the car.

Plaintiff's Negligence Must Contribute to the Accident

A defendant has to show that the plaintiff's negligence contributed to the accident. If the plaintiff's behavior made his or her injuries worse, but didn't actually cause the accident, the defendant may be out of luck.

For example, if Dan raises the defense of contributory negligence against Ann, the pedestrian who unexpectedly darted into the road, he has to establish that her behavior—darting into the road—played a part in causing the accident and her injuries. Learn more about defenses in personal injury cases.

Getting Help

Dealing with defenses and the allocation of fault in car accident cases can be complicated and may require the assistance of an attorney. Learn more about when you need a lawyer for a personal injury case. If you decide to represent yourself, get How to Win Your Personal Injury Claim, by Joseph L. Matthews (Nolo).

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