Question: What is comparative negligence? What is contributory negligence?
Answer: When negligence is shared by drivers in an auto accident, it comes down to state negligence laws to determine how each will be compensated for his or her damages.
With comparative negligence, liability and claims for a car accident can be divided between each negligent driver according to the percentage they each were found to be at fault.
Suppose Dave is speeding down the street and Sarah makes a left-hand turn in front of Dave, striking his car. Both drivers are found to have contributed to this accident, and the insurance company will make the determination of liability for damages.
Let’s say Sarah is found 80% at-fault, due to not yielding the right-of-way, and Dave is 20% at-fault for speeding. If Dave’s damages came to $10,000, then with comparative negligence laws he would receive $8,000.
Contributory negligence is used in only a few states (Alabama, Maryland, North Carolina, Virginia and the District of Columbia) and is much harsher than comparative negligence.
Contributory negligence basically prohibits a driver to recover anything if it’s proved that he acted negligently and is found to be even the slightest degree at-fault for the incident.
If contributory negligence laws applied to Dave and Sarah's accident, neither could claim for damages against the other’s liability coverage.
A little blame can go a long way
Comparative negligence furthermore breaks down into pure comparative negligence and modified comparative negligence.
In the states that have pure comparative negligence laws, drivers can recover some compensation for their damages, even if their degree of fault is higher than the other driver’s. Sarah could thus make a claim against Dave’s insurance, but she would receive only 20% of the costs of her damages.
A majority of states have modified comparative negligence laws that limit a driver’s recovery if his fault exceeds a certain percentage. There are two schools of thought on modified comparative negligence, so it further breaks down to states that have a 50% rule and those with a 51% rule.
In states with the 50% rule, a driver cannot recover if he is 50% or more at fault. If he is 49% or less at fault, then he can receive compensation for his damages, though reduced by his degree of fault.
States that have a 51% percent rule don’t let a driver recover for his damages if he is 50% or more at fault. If he is 50% or less at fault, then he can recover, but again reduced by his degree of fault.
In states with modified comparative negligence, Sarah couldn’t make a claim against the other driver to recover anything because she was more than 50% at fault for the accident.
The decision isn't final
With either comparative or contributory negligence, if a driver disagrees with how the percentage of negligence was determined, then the case may end up court for a final determination of how the state’s comparative or contributory laws apply. Your state insurance regulator can give you information on the negligence laws your state has in place.
If you place a claim through your own collision coverage, comparative and contributory negligence don’t apply. Collision benefits pay out in full no matter how much you are at fault for the accident. Comparative and contributory negligence applies only if you are pursuing a claim through the coverages (usually bodily injury liability and/or property damage liability) of the other driver.