Personal Injury

Which States Follow Contributory Negligence?

A small number of states still follow the plaintiff-unfriendly rule of contributory negligence in personal injury cases, which can leave an injured claimant with no compensation if he or she is found to share any amount of fault for what happened.
By David Goguen, J.D., University of San Francisco School of Law
Updated: Feb 22nd, 2019

In every state, if a personal injury claimant (the person who suffered an injury) also bears some level of fault for the accident, that's going to have some impact on the case. But the effect of the plaintiff's shared fault varies depending on the rules in place in the state where the personal injury lawsuit is filed. Does the state follow "comparative negligence" (as the vast majority of states do) or is the case being brought in one of the few states that still follow "contributory negligence"? Let's look at why this matters.

What is Contributory Negligence?

Under the rule of contributory negligence, if the person bringing a personal injury lawsuit is found to share any amount of fault for the underlying accident, he or she can't recover damages from any other at-fault party. Even if the claimant is deemed only five percent at fault, and the other party is found to bear 95 percent of the blame, the claimant isn't entitled to any compensation in the eyes of the law.

So, in the handful of states where it still applies, where an injured person bears even the slightest share of accident liability, the rule of contributory negligence leaves that person with no chance to recover compensation for any losses stemming from the accident: medical bills, lost income, pain and suffering, and so on. So, without further adieu, which states/jurisdictions still follow this rule? They are:

  • Alabama
  • Maryland
  • North Carolina
  • Virginia
  • Washington D.C.

How is the rule of contributory negligence applied, in practical terms, in a personal injury case? If an accident or other incident leads to the filing of a personal injury lawsuit, and the case makes it to the trial stage, the jury will be asked to first make a finding as to who was at fault—that means deciding who was negligent, in most cases. Learn more about proving negligence in a personal injury case.

Let's say it's a pedestrian-car accident case, where the plaintiff was hit in a crosswalk. The defendant (the driver) clearly violated the law, but the plaintiff (the pedestrian) was texting at the time of the accident. While it's clear that the driver was negligent, if the jury finds that the plaintiff was also negligent (deciding that a reasonable person wouldn't be texting in a crosswalk), and that that negligence played a part in causing the accident (even a one-percent part), the court will apply the rule of contributory negligence, and the plaintiff will be barred from recovering any compensation at all from the driver. (Understand the "reasonable person" standard in a personal injury case.)

That's obviously a harsh result, and personal injury case outcomes like this are why most states have abandoned the "contributory negligence" rule in favor of "comparative negligence."

Comparative Negligence Is the Rule Everywhere Else

The vast majority of states (every state/jurisdiction other than Alabama, Maryland, North Carolina, Virginia, and Washington D.C.) follows some version of a rule called "comparative negligence," where the plaintiff's share of fault is taken into account, and the amount he or she can receive from other at-fault parties is adjusted accordingly (up to a point).

Many states have adopted "pure" comparative negligence, which allows a negligent plaintiff to get compensation from other at-fault parties no matter how much blame he or she bears. Other states follow "modified comparative negligence," where a negligent plaintiff can only get compensation from other at-fault parties if his or her share of fault is no more than 50 percent (the threshold is "less than 50 percent" in some states). Learn more about "pure" and "modified" comparative negligence.

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