Comparative Negligence
A system that apportions fault between plaintiff and defendant(s) and reduces plaintiff’s damages proportionally, replacing the common law rule of contributory negligence (complete bar to recovery).
Elements / Test
Two main systems:
Pure comparative fault (minority of states — CA, NY):
- Plaintiff recovers their percentage of damages regardless of degree of fault
- Even a 99% at-fault plaintiff can recover 1% of damages
Modified comparative fault (majority of states):
- 50% rule: Plaintiff barred if plaintiff’s negligence is equal to or greater than defendant’s (≥ 50%)
- 51% rule: Plaintiff barred if plaintiff’s negligence is greater than defendant’s (> 50%)
- Plaintiff at exactly 50% can recover under the 51% rule but not the 50% rule
Traditional contributory negligence (AL, MD, NC, VA, DC — still law):
- Any contributory negligence by plaintiff is a complete bar to recovery
- Last clear chance doctrine: defendant who had final opportunity to avoid harm is liable despite plaintiff’s negligence
Exceptions and Edge Cases
- Assumption of risk: Express (written release) = complete bar; implied primary (plaintiff assumed inherent risk) = complete bar; implied secondary (reasonable/unreasonable) — most jurisdictions merge into comparative fault
- Multiple defendants: Pure several liability (each pays own share); joint and several (any defendant liable for full amount); modified joint and several (varies by threshold)
- Intentional tortfeasors: Some states do not compare fault of intentional and negligent actors
- Strict liability: Some states permit comparison between negligent plaintiff and strictly liable defendant
- Products liability: Plaintiff’s misuse or failure to discover defect can be compared
Policy Rationale
Harsh all-or-nothing contributory negligence rule allows negligent defendants to escape liability entirely. Comparative fault creates fairer apportionment, retains some deterrence for plaintiff, and aligns with intuitions about shared responsibility.
Key Cases
| Case | Rule |
|---|---|
| Li v. Yellow Cab Co. of California (1975) | California Supreme Court adopted pure comparative negligence, abandoning contributory negligence |
| Uniform Comparative Fault Act (1977) | Model act for legislative adoption of pure comparative fault |
| Knight v. Jewett (1992) | Primary assumption of risk as complete defense in sports/recreational activities |