Negligence: Comparative and Contributory

By Daisy Rogozinsky
March 27, 2022

If you are in a motor vehicle accident, negligence will play a major factor in the insurance payout you and/or the other party will receive. In this article, we’ll define negligence, comparative negligence, contributory negligence, and explain the role of each in car accidents. 

Key Takeaways

  • Negligence is a failure to behave as a reasonable person would, resulting in loss to another party
  • To prove negligence, there must be a duty of care, breach of duty, causation, and damages
  • Comparative negligence is when both parties are assigned a percentage of the blame (and damages) for an accident
  • Contributory negligence is assigned to the party that is less responsible

What Is Negligence?

In law, negligence is a term used to refer to an individual’s failure to behave in a way that a reasonable person would be expected to under a certain set of circumstances resulting in a loss to somebody else. Negligence can either be an action or the omission of an action where there is a duty to act.

There are four components necessary to prove negligence:

  • First, it must be demonstrated that the defendant owed the plaintiff a duty of care 
  • Next, it must be demonstrated that there was a breach of duty on the part of the defendant

Next, it must be proved that the breach of duty was the cause for harm or loss to the plaintiff 

  • Finally, the plaintiff must be able to demonstrate the damages that were caused by the defendant’s negligence

What Is Comparative Negligence?

Comparative negligence applies to insurance. It’s used to assign blame in motor vehicle accidents by determining to what extent both parties were responsible for the accident. Based on the degree of determined negligence, damages are rewarded proportionally. 

Insurance adjusters will carefully review the available evidence such as police reports, medical records, witness statements, and photos/videos from the scene in order to assign fault. With comparative negligence, each party is ultimately assigned a percentage of fault. Then, both insurance companies pay their share of the other party’s damages. 

What Is Contributory Negligence?

The amount of fault assigned to the less responsible party in a motor vehicle accident is called contributory negligence. This is usually defined as the extent to which a plaintiff neglected to exercise reasonable care for their own safety. This is a common defense in motor vehicle accident lawsuits. 

Negligence in Motor Vehicle Accidents

To help you understand the way comparative and contributory negligence work in motor vehicle accident law, let’s take a look at an example. Let’s say you’re driving on the freeway and somebody rear-ends you. However, at the time of the accident, you were looking at your phone rather than the road. In this situation, comparative negligence can be assigned as both of you were not driving safely. 

In this situation, it might be determined that the other driver was 80% at fault but that you deserve 20% of the responsibility for your own contributory negligence. As a result, your insurance company will pay the other driver for 20% of the damages while the other driver’s insurance company will need to pay you 80% of the damages. This is the case in states that use pure comparative negligence.

However, there are also states that use modified comparative negligence, which means you can only collect damages if you were less than 50% at fault. In this situation, the other driver wouldn’t be able to collect any damages, while you would still receive 80%. 

Finally, there is are the possibility that your state uses pure contributory negligence, which means you lose your right to compensation if you were found to be even 1% at fault for the accident. In this situation, neither you nor the other party would receive damages.

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