Comparative vs. Contributory Negligence: What's the Difference?

In the world of personal injury claims, relatively obscure concepts can have a dramatic effect on the result. Such is the case with contributory and comparative negligence. If either one applies in your case, it can reduce the monetary damages you’ll be able to recover or may even prevent any recovery at all.

Here is how comparative and contributory damage work and the difference is between them.

What Is Negligence?

To understand either of these concepts, it’s essential to know what negligence is. Negligence is a failure to exercise reasonable care that results in an injury to others. More specifically, there are four elements of a legal claim of negligence:

1. A Duty of Care — Drivers, for example, have a duty of care to operate their vehicles safely to avoid injuring others.
2. Breach of Duty — Texting while driving would breach the duty of care because it is not something that a reasonably prudent person would do.
3. Causation of Injuries — The negligent behavior must have been the direct cause of the other person’s injuries in a reasonably foreseeable way.
4. Damages — The victim must suffer some actual, legally recognized harm, which can be calculated in a dollar amount.

Contributory Negligence

A contributory negligence doctrine serves as a legal defense in negligence cases. If the plaintiff is even slightly responsible for their injuries, then the defendant is not legally responsible for that portion of the plaintiff’s damages. For example, if a texting driver strikes a pedestrian who was jaywalking, both parties would likely be found negligent; they both failed to exercise reasonable care and were breaking the law at the time. Under the doctrine of contributory negligence, the pedestrian would not be able to recover any damages from the driver because their negligence contributed to their injuries.

Contributory negligence can often lead to severe and unfair results for plaintiffs. The defendant can completely avoid responsibility even if they are only 1% responsible for their injuries. Luckily, most states (including Colorado) have abandoned the doctrine in favor of comparative negligence.

Comparative Negligence

Under the doctrine of comparative negligence, a plaintiff can still recover damages from a defendant even if their negligence partially contributed to their injuries. If the plaintiff is found to be negligent, their award of damages is reduced by the percentage for which they were responsible. So, if the plaintiff suffered $100,000 in damages but was 25% responsible for their injuries, they can only recover $75,000.

Most states follow this doctrine, though there are two variations: pure comparative negligence and modified comparative negligence.

Pure Comparative Negligence

In a pure comparative negligence jurisdiction, defendants can be held liable for damages even if the plaintiff was primarily responsible for their injuries. Even if the plaintiff is 99% responsible, they can still recover 1% of the damages from the defendant.

Modified Comparative Negligence

Colorado and the large majority of other states use what is called a modified comparative negligence doctrine. Under modified comparative negligence, a plaintiff can still recover damages if they were negligent (reduced by the percentage of their fault), but only if they are less than 50% at fault. Therefore, if the plaintiff is found to be 49% at fault, they can still recover 51% of their damages; if they are 51% at fault, they get nothing.

Discuss Your Case with an Attorney

Personal injury cases can be complicated and stressful, and there’s rarely a good reason to go through it alone. People who hire an attorney with personal injury experience typically recover significantly more money and don’t have to worry about making costly mistakes when dealing with the other side’s insurance company and lawyers.

Our team has handled a wide variety of cases, and we know how to move quickly and aggressively to achieve a fair outcome for you. Contact our office to set up your first appointment.