Contributory and comparative negligence are key concepts in tort law. They determine how fault is assigned when both parties contribute to an injury. These principles can significantly impact a plaintiff's ability to recover damages in negligence cases.

Contributory negligence is a harsh "all-or-nothing" approach, barring recovery if the plaintiff is even slightly at fault. Comparative negligence, on the other hand, allows for a more flexible distribution of fault, often enabling plaintiffs to recover partial damages based on the defendant's degree of responsibility.

Contributory and Comparative Negligence

Concept of contributory negligence

• Defense used by defendants in negligence cases asserts plaintiff's own negligence contributed to their injuries
• If plaintiff found to have contributed to their injuries in any way, barred from recovering damages even if plaintiff's negligence was minor compared to defendant's negligence
• "All-or-nothing" approach plaintiff receives no compensation if found even slightly at fault (tripping on a sidewalk crack while distracted by a phone call)

Doctrine of comparative negligence

• Alternative approach to contributory negligence allows plaintiffs to recover damages even if partially at fault
• Fault apportioned between plaintiff and defendant based on respective degrees of negligence
• Two main variations:
  • Pure comparative negligence plaintiff can recover damages regardless of degree of fault, damages reduced in proportion to plaintiff's percentage of fault (90% defendant's fault, 10% plaintiff's fault)
  • Modified comparative negligence plaintiff can recover damages only if fault is below certain threshold (usually 50% or 51%), if plaintiff's fault exceeds threshold, barred from recovery (49% plaintiff's fault, 51% defendant's fault)

Contributory vs comparative negligence

• Contributory negligence harsher approach for plaintiffs completely bars recovery if plaintiff found even slightly at fault (not wearing a seatbelt during a car accident)
• Comparative negligence more flexible, allows for more equitable distribution of fault and damages recognizes both parties may have contributed to injury
• Under contributory negligence, fault not apportioned between parties defendant either fully liable or not liable at all
• Comparative negligence allows fault to be apportioned based on each party's degree of negligence damages awarded in proportion to defendant's percentage of fault (75% defendant's fault, 25% plaintiff's fault)

Application of negligence principles

• Scenario 1: Plaintiff texting while crossing street, hit by car that ran red light
  1. Contributory negligence: Plaintiff may be barred from recovery if found to have contributed to accident by texting
  2. Comparative negligence: Fault apportioned between plaintiff (for texting) and defendant (for running red light)
• Scenario 2: Plaintiff slips and falls in store due to spill not cleaned up promptly
  1. Contributory negligence: If plaintiff not paying attention or wearing inappropriate footwear, may be barred from recovery (wearing high heels)
  2. Comparative negligence: Fault apportioned between plaintiff (for not being cautious) and store (for not cleaning up spill promptly)