Comparative & Contributory Negligence in Personal Injury Lawsuits

Imagine you're in a car accident. Even if the other driver ran a red light, you might still be partially at fault if you were speeding. This type of situation is where the concepts of comparative and contributory negligence come into play.

Negligence is the most common theory of liability in personal injury lawsuits. It usually requires a plaintiff to prove that they were injured because the defendant failed to act with reasonable care. Defendants in these cases often raise the defense of comparative or contributory negligence to reduce or bar a plaintiff’s financial recovery when the plaintiff’s own actions contributed to the incident. The applicability of this defense depends on the state and the approach that it takes when a victim was partly at fault.

Comparative Negligence

Under comparative negligence, if a plaintiff is found partly responsible but not entirely at fault, they can still recover damages. The recovery is decreased in proportion to the plaintiff’s fault. However, some states have a limit on how much at fault a plaintiff can be and still recover damages. These states are called modified comparative negligence states, in contrast to the pure comparative negligence states that don’t have a limit.

Pure Comparative Negligence

In pure comparative negligence states, such as California and New York, the plaintiff’s total damages are reduced by the percentage of the plaintiff’s own fault, regardless of how high that percentage may be. If a jury finds that the victim was 40 percent at fault for a car crash, for example, and the damages total $50,000, the victim could recover $30,000. Meanwhile, if the victim’s fault is assessed at 60 percent, they could still recover 40 percent of the damages, or $20,000. This second scenario shows where pure comparative negligence is different from modified comparative negligence.

Modified Comparative Negligence

Under the modified comparative negligence model, a plaintiff can recover damages only if their fault falls below a certain threshold. States vary in where they set that bar. States such as Colorado and Georgia follow a 50 percent bar rule, meaning that a plaintiff cannot recover if they’re found 50 percent or more at fault. Others like Illinois and Texas use a 51 percent bar rule, which denies recovery if the plaintiff’s fault is at least 51 percent. (Sometimes this is described as “more than 50 percent” at fault.) Michigan follows a pure comparative negligence model for economic damages and a modified comparative negligence model with a 51 percent bar for non-economic damages.

Contributory Negligence

A small number of jurisdictions apply the contributory negligence doctrine. In these places, if the plaintiff is even minimally at fault, they generally cannot recover any damages. Alabama, Maryland, North Carolina, Virginia, and Washington, D.C. continue to use contributory negligence. This doctrine can produce harsh outcomes for plaintiffs who didn’t do much wrong. Imagine someone who incurs $200,000 in damages from a crash for which they were 10 percent at fault. They could get $180,000 in a comparative negligence state, but they generally would get nothing in a contributory negligence state.

Last reviewed February 2025