Comparative and Contributory Fault

Personal Injury Guide

Types of Fault & Liability for Your Damages

Perhaps the single most determinative factor in whether you will be able to receive compensation after an injury, and in what amount, is a determination of who is at fault for your injuries.

Fault in Legal Terms

In legal terms, fault is a loaded word. It means that someone was responsible for breaching a legal duty, that the breach of legal duty was responsible for causing harm, and that the person at fault is responsible for paying for the harm. This can result in a verdict in the tens of thousands or even hundreds of thousands or millions of dollars.

What if Multiple Parties are at Fault?

Sometimes not just one person is at fault. You may have been negligent, and someone else may also have been negligent, making both of you at fault. Knowing what happens in this scenario is vital to your recovery of damages.

Comparative vs. Contributory Fault Law

Under the traditional common law rules, a doctrine called contributory negligence is in place. Contributory negligence is essentially a rule that says if you contribute to your own injury, you can't hold anyone else responsible for it. In a pure contributory negligence system, if you are even one percent at fault and you suffer hundreds of thousands of dollars in damages, you can't collect any of those damages from the person who is 99 percent responsible. If you are determined to have been negligent, even a little bit, you get nothing.

This contributory negligence doctrine can result in pretty unjust results, and the concept of contributory negligence has all but given way to a different doctrine called comparative fault.

Comparative Fault

Comparative fault is different from contributory negligence. Under a comparative negligence rule, the amount of fault that belongs to each person involved in causing the accident or injury is determined. For instance, say one party ran a red light and the other turned illegally at the same time. Both of these parties were negligence, and each one's negligence contributed to the accident. The factfinder in that case (the judge or jury) would have to determine how much fault each of them contributed. For instance, perhaps the person who ran the red light was the one who was primarily responsible, and the other driver just contributed a bit with his own illegal and negligent action. The driver who ran the red might be found to be 60 percent at fault, and the driver who turned illegally, 40 percent responsible.

In such cases, under a pure comparative fault system, each party could collect damages equal to the percent of fault that belongs to the other party. For instance, say the illegal turner suffered $100,000 in damages. He/she could recover $60,000 from the red-light runner. If the red-light runner also suffered $100,000 in damages, he/she could only recover 40 percent of those costs, or $40,000.

Pure Comparative Fault Vs. Modified Comparative Fault

While comparative fault is a good idea in theory, it could also potentially lead to some fairly small-stake lawsuits. For instance, if a person suffered an accident or injury that was 1 percent the other driver's responsibility, that person could technically sue for 1 percent of his or her damages in a pure comparative fault system. This might end up being a small amount of money. Of course, it wouldn't necessarily be. If a million dollars in damages occurred due to the injury, then one percent might still be worth suing for.

States, however, had to decide if they wanted to allow a person who is 99 percent responsible for causing his/her own injuries to be able to recover for damages for the other one percent. Certain states didn't think this was fair, so they had to establish a general cut off point that created a rule for just how responsible one person can be for his/her own injuries before he/she isn't allowed to collect damages. The states that set this dividing line in the sand for when responsibility can and cannot be appropriated are referred to as "modified comparative fault states" because they've changed the pure comparative fault rules.

The two different camps that these states fall into are the following:

Those who allow a plaintiff to sue only if the defendant is at least 51 percent responsible. This means the most fault a person can have for his/her own accident is 49 percent
Those who allow a plaintiff to sue if he/she is as much as 50 percent responsible. As soon as the plaintiff crosses over into being more than half at fault, he/she loses the right to sue.

Of course, in states that use modified comparative fault systems, the difference between 1 percent can be huge. Being found to be 50 or 51 percent at fault for your accident can mean the difference between collecting thousands of dollars in damages and collecting nothing at all. Some question whether this is a fair outcome, but the fact remains that this is what the law is, and if you live in one of these states, it is absolutely imperative that you do your best to collect extensive evidence after an accident that will allow you to prove exactly who is at fault.

Which States are Which?

The table below shows the rule that each state uses:

State	Rule	State	Rule
Alabama	Contributory negligence	Alaska	Pure comparative negligence
Arizona	Pure comparative negligence	Arkansas	50 Percent Rule
California	Pure comparative negligence	Colorado	50 Percent Rule
Connecticut	51 Percent Rule	Delaware	51 Percent Rule
D.C. (Washington DC)	Contributory negligence	Florida	Pure comparative negligence
Georgia	50 Percent Rule	Hawaii	51 Percent Rule
Idaho	50 Percent Rule	Illinois	51 Percent Rule
Indiana	51 Percent Rule	Iowa	51 Percent Rule
Kansas	50 Percent Rule	Kentucky	Pure comparative negligence
Louisiana	Pure comparative negligence	Maine	50 Percent Rule
Maryland	Contributory negligence	Massachusetts	51 Percent Rule
Michigan	51 Percent Rule	Minnesota	51 Percent Rule
Mississippi	Pure comparative negligence	Missouri	Pure comparative negligence
Montana	51 Percent Rule	Nebraska	50 Percent Rule
Nevada	51 Percent Rule	New Hampshire	51 Percent Rule
New Jersey	51 Percent Rule	New Mexico	Pure comparative negligence
New York	Pure comparative negligence	North Carolina	Contributory negligence
North Dakota	50 Percent Rule	Ohio	51 Percent Rule
Oklahoma	50 Percent Rule	Oregon	51 Percent Rule
Pennsylvania	51 Percent Rule	Rhode Island	Pure comparative negligence
South Carolina	51 Percent Rule	South Dakota	Pure comparative negligence
Tennessee	50 Percent Rule	Texas	51 Percent Rule
Utah	50 Percent Rule	Vermont	51 Percent Rule
Virginia	Contributory negligence	Washington	Pure comparative negligence
West Virginia	50 Percent Rule	Wisconsin	51 Percent Rule
Wyoming	51 Percent Rule

If you have been injured and wish to hold someone responsible, it is imperative you understand the fault rules for your state and do everything in your power to collect evidence of fault. You should strongly consider speaking with an attorney for help in these matters in order to ensure your legal rights are fully protected.

Next Steps

11. Damages in Personal Injury Law
12. How to Value a Personal Injury Case
13. Tort Reform