The difference between contributory and comparative negligence

In order to pursue a claim for injuries sustained in an automobile collision under Virginia law, there must be negligent behavior by the other party.  Negligence is a determination that the other party did not use “ordinary care” in their behavior.  Virginia law says that “[o]rdinary care is the care a reasonable person would have used under the circumstances of this case.” [1] That is the first criteria that must be met.  The second criteria that must be met is that the injured party bringing the claim must be deemed to not be at fault at all.  This is because Virginia is still one of the few states to adhere to the doctrine of “contributory negligence,” which does not allow compensation if the injured party bringing the claim contributed to their injuries.  This is different than most states, which follow the doctrine of “comparative negligence.”

contributory and comparative negligence

Comparative negligence does what the name suggests:  it compares the negligence of the drivers based on who was more to blame for the collision.  If John runs a stop sign and strikes a car operated by Jane, who is driving well over the speed limit, they have both behaved negligently.  In a state that follows pure comparative negligence [2], the judge or jury will compare John’s behavior to Jane’s.  If the judge or jury believes that John is 75 percent at fault and Jane is 25 percent at fault, John would be entitled to recover 25 percent of his total damages from Jane and Jane could recover 75 percent of her total damages from John.  Thus, if both of their cases are worth $100,000 each then John would be entitled to $25,000 and Jane $75,000.

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

Virginia is one of very 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 percent at fault, and the plaintiff’s negligence is as little as 1 percent, 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 collision. Under the last clear chance doctrine, the manner in which the plaintiff finds themselves in a 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.” The “willful and wanton” standard requires behavior that is not merely negligent, but instead indicates that defendant consciously, or with reckless indifference, behaved in a manner that he knew or should have known would 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.

The contributory negligence doctrine is only followed by four states and the District of Columbia. Contributory negligence is still very much the law in Virginia. Even though most states have adopted a comparative negligence approach, it does not seem like that change is in the near future for the Old Dominion.  The doctrine 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 or her own negligence.  If you have any questions about the circumstances of a particular case, you should contact an attorney to discuss the situation.

[1] Virginia Model Jury Instruction 4.00


Footnotes

  • [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.