The Difference Between Contributory Negligence and Comparative Negligence

In order to pursue a claim for injuries sustained in an automobile accident under Virginia law, there must be negligent behavior by the other party.  Negligence is a determination that the other party didn’t use “ordinary care” in his behavior.  Virginia law says that “[o]rdinary care is the care a reasonable person would have used under the circumstances of this case.” [1] But what if both parties to an automobile accident failed to use ordinary care?  Can an injured plaintiff recover despite his own negligence?  In many states, the answer is yes.  Those states follow the doctrine of “comparative negligence.”  Virginia, and a few other states, however, adhere to the doctrine of “contributory negligence” which may bar a recovery by the plaintiff.

Comparative negligence does what the name suggests:  it compares the negligence of one driver to that of the second driver.  If John runs a stop sign and strikes a car operated by Jane at a speed well over the speed limit, they have both behaved negligently.  In a state that follows pure comparative negligence [2], the finder of fact (i.e., the judge or jury) will compare John’s behavior to Jane’s.  If the finder of fact believes that John is 75% at fault and Jane is 25% at fault, John would be entitled to recover 25% of his damages from Jane and Jane could recover 75% of her damages from John.

Many states instead use modified comparative negligence.  There are two types of modified comparative negligence.  In the first, “50% bar,” a plaintiff is only allowed to recover if his negligence contributed less than 50% to the accident.[3] In our example, Jane could recover 75% of her damages from John, but John could not recover anything from Jane because his negligence was more than 49%.  If the finder of fact determined that Jane and John were each 50% responsible for the collision, neither would recover anything from the other.  In the second type, “51% bar,” a person can only recover if they are less than 51% responsible.[4]  In those states, a finding that John and Jane were equally responsible for the accident would mean they would each recover 50% of their damages.

Virginia is one of a few contributory negligence states.[5]  The concept of contributory negligence dates back to English common law.  Under this harsh doctrine, if the plaintiff behaved negligently in a manner that contributes the slightest amount to causing his injuries, he recovers nothing at all. Even if the defendant is found to be 99% at fault, and the plaintiff’s negligence is as little as 1%, recovery is barred under this doctrine.

There are a few exceptions to the contributory negligence bar.  The doctrine of “last clear chance” applies in a limited number of situations with very special circumstances, in which the defendant, despite plaintiff’s own negligence, had the last clear chance to avoid the accident. Under the last clear chance doctrine, the manner in which the plaintiff landed in the situation of peril, as well as his own knowledge of his peril, are analyzed to determine whether he may recover despite negligence on his part. Another exception is when the defendant has behaved in a manner deemed to be “willful and wanton.” “Willful and wanton” requires behavior that is not merely negligent, but in which the defendant consciously, or with reckless indifference, behaves in a manner that he knows or should know will likely cause harm to another.  A third exception may be the age of the plaintiff. A necessary component of contributory negligence is negligence on the part of the plaintiff. Children under the age of seven are deemed incapable of negligent behavior in Virginia and, therefore, cannot be contributorily negligent. For children between the ages of seven and fourteen, there is a rebuttable presumption that the child is incapable of behaving in a negligent manner, but this presumption may be overcome by evidence to the contrary.

Contributory negligence is a doctrine that has generally fallen into disfavor in the United States but is still a part of Virginia law.  It may or may not apply in any given case, or there might be an exception that will permit an injured plaintiff to recover despite his own negligence.  If you have any questions about the circumstances of a particular case, you should contact an attorney to discuss the situation.

About the Author: Tammy Ruble is an attorney with personal injury law firm of Allen, Allen, Allen & Allen. She serves as a resource on issues in her special fields of expertise which include the crafting of Complaints and documents relating to infant settlements, wrongful death settlements, due diligence, and discovery.


[1] Virginia Model Jury Instruction 4.00

[2] These states are Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington.

[3] Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, South Carolina, Tennessee, Utah, and West Virginia

[4] Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, Wisconsin, and Wyoming

[5] Contributory negligence jurisdictions in the United States are Virginia, Alabama, Maryland, North Carolina, and the District of Columbia.