Comparative vs. Contributory Negligence
Being in a car accident can be scary and overwhelming. At the time of the accident, you may struggle to keep yourself calm and composed. Even so, it’s important to remember a few things. First, as long as no one is hurt, gather evidence at the scene. Call the police and get a report. You may need it later on. Also, never admit fault in an accident at the scene. You might do so inadvertently by apologizing but avoid that. Say as little as you can at the scene of an accident.
Once you’re beyond that point, you’ll be dealing with insurance and perhaps a personal injury lawyer as well. There’s are a couple of terms you may hear, depending on what state you live in. One is comparative negligence, and the other is contributory negligence. The following are things to know about the two and how they compare to one another.
What is Negligence in a Car Accident?
First, both comparative and contributory negligence have something in common—the concept of negligence. So what is negligence in the concept of a car accident?
You can sue for negligence in a car accident. Negligence means you don’t use ordinary care. Most car accidents are not intentional. Negligence is a concept of carelessness instead.
With negligence, a driver didn’t exercise the necessary care toward others in a way that another reasonable person would have in the same situation. Negligence can also come from a failure to act.
Specific examples of negligence linked to car accidents are:
- Driving while distracted, such as while using a phone
- Drinking or eating while driving
- Driving while drowsy
- Speeding or not following other traffic laws
- Not properly maintaining a vehicle
- Sudden swerving or stopping
There’s also gross negligence. With gross negligence, a defendant isn’t just careless. They’re reckless. If someone is in a car accident that involves the negligence or carelessness of another person, they may have the right to receive compensation for injuries and property damage. Damages can include medical expenses and lost wages. When a situation causes injuries, the first question we usually turn to is whose fault it was. All states follow some principles of comparative fault. However, states differ in the people that a plaintiff can collect damages from.
What is Comparative Negligence?
Many states use comparative negligence. Two concepts fall under the category of comparative negligence.The first is pure comparative negligence. In pure comparative negligence, a negligent plaintiff may be able to recover damages even if their negligence is more than that of the defendant. The court in a comparative negligence situation would total the plaintiff’s injury and then reduce their amount of recovery based on what they contributed to the injury. An example would be if a plaintiff is found to be 60% at-fault for an accident. That plaintiff has $100,000 in damages, and the recovery amount is then $40,000.
The other concept is modified comparative negligence, of which there are two types. In some states, there’s a 51% bar. With this model as a plaintiff, you can recover as long as your negligence isn’t more than 50%. This is used in Texas, for example.
Then, there’s the 50% bar rule. If you’re a plaintiff in this model, you can only recover damages if your share of negligence is less than 50%.
What is Contributory Negligence?
There’s a contributory negligence rule where you’re prevented as a plaintiff from recovering if you were negligent at all. If the plaintiff doesn’t exercise ordinary care in these states, then it prevents the plaintiff from recovering from the defendant at all. With contributory negligence, you can be only 1% at-fault in an accident and still not recover.
Elements of a Negligence Claim
In general, there are elements of a negligence claim to be aware of. The person bringing the lawsuit has to show the person being sued was negligent. Negligence claims have to show four concepts which are duty, breach, causation, and harm or damages. Duty means that the defendant owed a legal duty to the plaintiff, given the circumstances. Breach means the defendant breached the owed duty because they acted or didn’t act in a certain way. Causation indicates the action or inaction of the defendant caused the injury. Damages mean the plaintiff was harmed or injured because of the actions or inactions of the defendant.
Some of the duties a driver has include:
- You have a duty to drive at a reasonable speed. If you drive at an unreasonable speed, you are displaying negligence. In some cases even driving at the speed limit can be considered negligent if the traffic visibility or road conditions indicate you should be driving slower. For example, if the weather is bad and you’re driving at the speed limit, it means you breached your duty.
- As a driver, you have a duty to stay alert and always be looking for other pedestrians and vehicles on the road. As a driver, you are expected to see what an ordinary person would see, like a pedestrian or a road hazard.
- You are expected to maintain control of your car. You should be able to stop quickly if needed, for example.
- You also have a duty to maintain your vehicle properly.
As far as proving fault, there are different ways this is done. If you’re in an accident, consulting a personal injury lawyer can help here. Police reports play a big role in determining fault if an officer responds to the accident scene. In some reports, the responding officer will include an opinion on who they believe to be at fault. There will also be an examination of evidence. For example, evidence might include witness statements and damage done to the vehicle. This information needs to be documented before vehicles are repaired, so you should try to take pictures at the scene.
The location of damage can indicate who's at fault, and pictures taken of the surrounding environment can help determine fault too.