Defending Against Negligence Claims

Contributory and Comparative Negligence

When an injured person files a lawsuit alleging negligence, the defendant may raise legal arguments known as defenses to reduce or eliminate liability. Understanding negligence defenses helps an insurance producer evaluate a policyholder's potential legal exposure and coverage needs. Under common law, one of the earliest defenses developed was contributory negligence. This strict doctrine bars an injured party from recovering any damages if their own negligence contributed to the injury. Under pure contributory negligence, an injured party who is even one percent at fault receives zero financial recovery, regardless of how negligent the defendant was.

To soften this harsh outcome, some contributory negligence jurisdictions recognize the last clear chance doctrine. Under the last clear chance doctrine, an otherwise barred negligent plaintiff may recover damages if the defendant had the final opportunity to avoid the accident and failed to do so. However, because pure contributory negligence often produces severe outcomes, most states have replaced it with some form of comparative negligence. Comparative negligence assigns percentages of fault to each party involved and generally reduces a plaintiff's recovery by their own percentage of fault.

Comparative negligence operates primarily under two distinct systems: pure comparative negligence and modified comparative negligence. Under pure comparative negligence, a plaintiff may recover a reduced amount even if they bear most of the fault, though they cannot recover from a defendant who bears no fault at all. For example, in a pure comparative negligence state, a plaintiff who is 80 percent at fault can still recover 20 percent of their damages from the defendant. Under modified comparative negligence, state law sets a fault cutoff: some rules bar recovery at 50 percent fault, while others bar recovery when the plaintiff's fault exceeds 50 percent.

Under modified comparative negligence, two common threshold rules exist. One common rule bars recovery if the plaintiff is 50 percent or more at fault. Another common rule allows recovery if the plaintiff's fault is 50 percent or less, but bars recovery if it exceeds 50 percent. Under modified comparative negligence, a plaintiff recovers nothing if their fault reaches the level that bars recovery under that state's rule. Whenever a plaintiff is permitted to recover under any comparative negligence system, their total damage award is reduced by their own percentage of fault.