Differences Between Comparative Negligence and Contributory Negligence
The fundamental difference between the legal concepts of comparative and contributory negligence is that comparative negligence seeks to compensate the injured party at least for some part of his or her injuries, while contributory negligence is a total bar to any damage award to the plaintiff. In both instances, the plaintiff's negligence must be proved by the defendant. The difference boils down to how the plaintiff's ultimate recovery (if any) is impacted by the plaintiff's own negligence. A further difference is that contributory negligence originated in common law, while comparative negligence is a statutory creation in jurisdictions that abolished the antiquated common law predecessor.
Why do we have two legal concepts dealing with negligence of the plaintiff?
Contributory negligence is the older of the two doctrines, and it originates from common law in England. The doctrine first arose in the context of the employment situation in which employers tried to defend themselves from workers' injury lawsuits. The intent behind the doctrine was to cut down on careless conduct and fraudulent claims. The term refers to the premise that a party who negligently harms another party is not deemed responsible if the injured party was himself negligent in his actions to any extent. The doctrine is a total bar to recovery of any damages on the part of plaintiff in jurisdictions where contributory negligence is the rule.
Because contributory negligence is perceived as such a harsh rule, some states have moved away from the concept and adopted a system of modified contributory negligence. However, the majority of states have adopted an alternative concept of negligence, that of comparative negligence. This system is used to allocate recovery for injuries. An injured party's compensation award is founded upon a comparison of defendant's negligent conduct with that of the plaintiff. The formulas for making the allocations can be complex and challenging.
Pursuant to comparative negligence, an injured party may seek to recover damages for his injury against a negligent defendant if the injured party's own negligence was less than defendant's negligence. In situations in which the plaintiff and defendant both exhibited negligent conduct, the parties' negligence is compared. Each party's negligence is lowered to match the percentages of the total amount of negligence that contributed to the injury. Ratios for the relative amount of negligence of each party are applied. If an injured plaintiff is ruled to have been 30 percent negligent in causing the ultimate injury at issue, and defendant is found to have been 70 percent negligent, the trier of fact adds up all of the damages potentially awarded to the plaintiff and reduces the plaintiff's damage award by 30 percent. If the plaintiff is determined to have been 51 percent negligent in his or her conduct, then he or she is barred from any recovery whatsoever.