ABA Family Legal Guide

Personal Injury

Negligence

Automobile Collisions

I was in a car accident, but it was partly my fault and partly the other driver's fault. Will this make a difference with regard to what damages ultimately are awarded?

Yes. In the past, the rule was that if you could prove the other driver contributed in any way to the accident, he or she could be totally barred from recovering anything from you. But now, most states have rejected such harsh results and instead look at the comparative fault of the drivers. If a jury finds that you were negligent and that your negligence, proportionally, contributed 25 percent to cause your injury and that the defendant was 75 percent at fault, the defendant would be responsible for only 75 percent of your damages, or $75,000 if your damages totaled $100,000. In some states, a plaintiff may recover even if he or she were more negligent than the defendant--that is, negligent in the amount of 51 percent or more. (See the sidebar on "Comparative and Contributory Negligence" below and chapter 11, "Automobiles," for more on standards of negligence for car accidents.)

Comparative and Contributory Negligence

There are different systems of negligence law in American jurisprudence. The traditional system used to be contributory negligence. Under contributory negligence, a plaintiff could not recover any damages if he or she contributed to his or her injuries (was contributorily negligent). Although there were some common-law doctrines that lessened the impact of this doctrine, this doctrine was seen as providing a harsh all-or-nothing outcome. It was all-or-nothing, because a plaintiff could recover all the damages (if considered not negligent) or no damages at all (if determined contributorily negligent).

The vast majority of states have switched to a system of comparative negligence to avoid the all-or-nothing rule of contributory negligence. Most states did so legislatively. In other words, the state legislature passed a law saying that comparative negligence is the law of the land. But, in a minority of states, the state's highest court (usually called the supreme court) made the change. Under a system of comparative negligence, a jury compares the actions of the parties and then allocates fault between the plaintiff and the defendant. A defendant is obligated to pay only the amount of damages caused by his or her own negligence. So if you're the plaintiff and the jury finds that your own negligence caused 20 percent of the damage, then the defendant would only be responsible for 80 percent of it. To put it another way, your recovery is reduced by your own percentage of negligence.

Most states switched from contributory to comparative negligence between 1969 and 1992. Tennessee became the forty-sixth state to adopt comparative negligence in 1992. Four states (Alabama, Maryland, North Carolina, and Virginia) still use contributory negligence.

There are different types of comparative negligence. Under a "pure" form of comparative negligence, a plaintiff can recover no matter how negligent he or she was. In other words, if a plaintiff suffered $10,000 in damages and was 80 percent at fault in a pure comparative negligence system, he or she still could recover $2,000 ($10,000 – $10,000(.80) = $2,000).

Under a "modified" or "50 percent" system, a plaintiff must be either equal to or less than 50 percent at fault in order to recover. In some states, the plaintiff's negligence must be less than 50 percent. In other states, the plaintiff's negligence must be 50 percent or less in order to recover.