When more than one person contributes to an accident, state law determines whether an injured person can still recover compensation and how their share of fault affects the amount.
This is where comparative negligence and contributory negligence come into play. The difference matters because comparative negligence may reduce compensation based on fault, while contributory negligence may prevent compensation altogether.
The rules vary by state. For example, California, Illinois, and Nevada all use comparative negligence, but they do not apply it in the same way.
What Is Negligence, and How Does It Apply to Personal Injury Claims?
Negligence generally means failing to use reasonable care under the circumstances. In a personal injury claim, an injured person usually must establish:
- Duty: The other party had a legal responsibility to act with reasonable care.
- Breach: The other party failed to meet that responsibility.
- Causation: That failure caused or contributed to the injury.
- Damages: The injured person suffered losses, such as medical expenses, lost income, property damage, or pain and suffering.
But what happens when the injured person also shares some responsibility for the accident? That depends on the negligence rule that applies.
What Are the Three Main Types of Negligence Rules?
States generally use one of three approaches to determine how an injured person’s share of fault affects their ability to recover compensation.
1. Pure Comparative Negligence
Under pure comparative negligence, an injured person may recover compensation even if they are mostly at fault. Their compensation is reduced according to their percentage of fault.
For example, someone who is 99 percent at fault could potentially recover 1 percent of their damages.
California follows this approach.
2. Modified Comparative Negligence
Modified comparative negligence also reduces compensation according to the injured person’s percentage of fault, but it includes a cutoff. Once the injured person’s fault reaches or exceeds the state’s applicable limit, compensation is barred entirely.
There are two common versions:
- 50 percent bar: An injured person generally cannot recover compensation if they are 50 percent or more at fault.
- 51 percent bar: An injured person generally cannot recover compensation if they are more than 50 percent at fault. This means someone who is exactly 50 percent at fault may still recover, although their compensation would be reduced by 50 percent.
Illinois and Nevada generally allow compensation recovery at 50 percent fault, subject to the requirements of each state’s law.
3. Contributory Negligence
Traditional contributory negligence is much stricter. In jurisdictions that follow this rule, an injured person who shares even a small amount of responsibility may be prevented from recovering compensation.
For example, even 1 percent of fault could potentially prevent recovery. Exceptions and defenses may vary by jurisdiction.
How Do Comparative and Contributory Negligence Compare?
The key difference is what happens when the injured person shares fault.
Comparative negligence may still allow an injured person to recover compensation, but the amount is reduced according to their percentage of fault. States that follow modified comparative negligence laws work by also imposing a cutoff for the amount of fault permitted by the injured person before their recovery is completely barred.
Contributory negligence may prevent an injured person from recovering compensation if they contributed to the accident at all.
The impact of shared fault is easier to see with an example. The graphic below shows how an injured person’s share of fault can affect compensation under different negligence rules.
How Is Fault Determined?
Fault is not determined by a formula alone. During an insurance claim, the people involved and their insurers may disagree about who caused the accident and how much responsibility should be assigned to each party.
Evidence used to evaluate fault may include:
- Police reports
- Photographs and videos
- Vehicle damage
- Electronic vehicle data
- Witness statements
- Expert analysis and testimony
A police report may be important, but it does not by itself make the final legal determination of who was responsible.
If a case goes to trial, the judge or jury deciding the case evaluates the evidence admitted in court and determines which facts have been proven:
- Jury trial: The jury decides the facts.
- Bench trial: In a trial without a jury, the judge decides the facts.
When shared fault is established, the judge or jury may assign a percentage of responsibility to each party. The effect of those percentages depends on the law of the state where the claim is brought.
What Negligence Rules Do California, Illinois, and Nevada Use?
California: Pure Comparative Negligence
California follows pure comparative negligence. An injured person may recover compensation even if they are up to 99 percent at fault. Their recovery is reduced according to their percentage of fault.
Key Case: Li v. Yellow Cab Co.
California adopted pure comparative negligence in Li v. Yellow Cab Co..
California Jury Instructions
California’s civil jury instructions also address how an injured person’s share of responsibility affects their damages. See the California Civil Jury Instructions.
Illinois: Modified Comparative Negligence
Illinois follows modified comparative negligence. An injured person may recover compensation if they are 50 percent at fault or less. Their recovery is reduced according to their percentage of fault.
If they are more than 50 percent at fault, they generally cannot recover compensation.
Illinois State Law
Illinois’s modified comparative negligence rule appears in 735 ILCS 5/2 1116. Exceptions may apply depending on the type of claim.
Nevada: Modified Comparative Negligence
Nevada follows modified comparative negligence. In many cases, an injured person may recover compensation when their negligence is not greater than the negligence of the defendant or the combined negligence of multiple defendants when applicable. Their recovery is reduced according to their percentage of fault.
If the injured person’s negligence is greater, they generally cannot recover under this rule.
Nevada State Law
Nevada’s rule is set out in NRS 41.141. The statute also contains additional rules involving multiple defendants and certain types of claims.
Negligence Laws by State
Negligence rules vary across the country. The map below provides an overview of the approach used in each state.
Get a Free Consultation With Our Attorneys at TORKLAW
Shared fault can affect how much compensation an injured person may be able to recover. Insurance companies may rely on statements, vehicle damage, video, medical records, and other evidence when disputing how responsibility should be divided.
If you were injured in an accident and are unsure about how negligence laws apply to your case, contact TORKLAW for a free consultation to discuss the specific facts of your potential claim.
Our attorneys at TORKLAW offer free case evaluations and can:
- Explain the negligence rule that may apply in your state
- Review evidence concerning how the accident occurred
- Evaluate disputes about shared fault
- Identify potentially responsible parties and available insurance coverage
- Discuss the damages and legal options that may apply to your situation