Contributory vs Comparative Negligence: What to Know

Contributory vs comparative negligence? Here’s what to know about the differences and whether it is something to be concerned with under California law.

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Introduction

In any personal injury case, there is the person who is accused of doing (or not doing) something that caused another person to get injured. Proving that the person is at fault while the other is truly a victim becomes the task at hand. However, it often comes down to the question of whether or not the injured’s actions may have contributed to the injury.

When there is any question about who may have been responsible for the accident, there are two legal doctrines – contributory negligence and comparative negligence – that help determine that negligence exists.

What is Negligence?

Negligence is one of those things that seems to arise quite a bit in personal injury cases. You know, someone is injured as the result of someone else’s negligence. But how do you prove that someone didn’t intend to do something? How do you prove they were simply negligent? And just what is negligence anyways?

Negligence is, in a sense, a legal theory. According to the definition set forth by Cornell Law School, negligence is “A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.  The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one’s previous conduct).”

There are different ways to prove that negligence becomes a factor. Contributory negligence and comparative negligence are two of those ways.

What is Contributory Negligence?

One of the oldest doctrines for proving negligence is contributory negligence. It actually stems from common law in England but made its way here in employment law cases where workers were filing lawsuits against their employers. The employers used this as a means of defending themselves against fraudulent claims.

So, what is contributory negligence?

Contributory negligence is based on the idea that although someone causes harm or injury to another party due to their negligence, the one who was injured also acted in a way that was negligent and contributed to the accident.

Here’s an example. Let’s say someone dropped a jar of spaghetti sauce in your local grocery store. The mess left behind clearly has become a hazard for a slip and fall. The sauce didn’t get cleaned up in a timely manner nor was it clearly marked for you to avoid the spill. As you are walking down the aisle looking at your phone to see what else is on your grocery list, you step right into the puddle, slip, fall, and break your collarbone from the fall. Is it the store’s fault that you didn’t see the sauce? After all, you weren’t paying close attention to the world around you – and were focused on your phone, right?

In this case, you would have contributed to the accident and, therefore, would not be entitled to any compensation regardless if the store was found at 90% fault and you only at 10%. Your compensation for injuries would be zero.

What is Comparative Negligence?

Comparative negligence is different from contributory negligence. In this type, you can still collect a percentage of compensation – even if you contributed to the accident. In the example above – with that 10% at fault, you will still be entitled to receive a portion of compensation for your injury.

There are two different types: pure comparative negligence and modified comparative negligence.

Pure comparative negligence. Not all states follow pure comparative negligence, but for those that do, this states that someone can recover compensation, but only up to the extent that they were not responsible for their own injury. In other words, sticking to the spaghetti sauce example above, if a court finds you 10% at fault for the injury and you are awarded $100,000, then you are only entitled to receive 90% of that or $90,000.

Unfortunately, with pure comparative negligence, it leaves the other party with the ability to collect their portion – since the injured party shared in fault. This makes things a bit tricky and many states have moved away from this and have adopted a modified comparative negligence standard.

Modified comparative negligence. Modified comparative negligence states that you can collect compensation for your injuries, but if you were at fault, your fault cannot surpass a certain threshold – which is usually 50% or 51%. For instance, in states with a 50% threshold, an injured party would only be able to collect compensation if they were found to be 49% at fault or less.

Let’s say the court found that you contributed to that spaghetti sauce mishap by 60%. According to modified comparative negligence, you would not be able to receive compensation. However, the grocery store would be entitled to collect 40% of theirs.

Proving Your Negligence Case

Before we go any further, let’s answer the question – Do contributory negligence and comparative negligence both apply in California?

No. Contributory negligence is one that many find to be unpitying and many states have moved away from using it – including California.

Under California law, a pure comparative negligence standard is followed. And this has been the standard practice since California’s judicial system began following pure comparative negligence in 1975, with its decision in Li v. Yellow Cab Co., 13 Cal. 3d 804 (1975) when a taxi driver made a left turn in front of a speeding car. Both were found to hold a percentage of fault rather than the all-or-nothing contributory negligence.

Conclusion

If you have been injured and are considering filing a claim, hire a personal injury attorney. There is so much at stake with your case and proving negligence can be pretty confusing. When you have an experienced lawyer working to prove the negligence of the other party, you can rest easy knowing that you will get the compensation you deserve.

So whether you have been injured in a slip and fall, a car accident, motor vehicle accident, product liability accident, truck accident, bicycle accident, dog bite accident or something else – let your attorney prove negligence so that you can receive the compensation you are entitled to.