Understanding contributory negligence and apportionment of fault

February 13, 2023

[Litigators can prepare for negligence cases with a state-by-state comparison of rules on apportionment of fault.]

Assigning fault among negligent persons in U.S. tort law can be complex. States have different approaches for deciding apportionment of fault and liability in negligence cases, with some approaches based in common law while others have been codified. 

The older standard for apportioning fault is called contributory negligence. Although most states have shifted to a standard called comparative negligence, contributory negligence remains the law in a handful of states and Washington, D.C. 

States also use varied approaches to apportioning fault to third parties and allocating liability among joint tortfeasors in negligence cases. Some states allow fault to be apportioned to third parties, and some forbid it entirely. Joint tortfeasors can be “jointly and severally liable” for all damages in certain states; in others, codefendants are only “severally liable.” Certain states use a hybrid approach to decide liability.

What is contributory negligence?

Contributory negligence is an affirmative tort defense in negligence cases that negates any damages for a plaintiff who is found to have contributed to their own injury, even if that contribution was minimal.  

In states that allow this tort defense, a defendant can assert contributory negligence to potentially defeat a plaintiff’s claim entirely, even if the allegations in the plaintiff’s complaint are true. 

For example, if a plaintiff is a pedestrian struck by a car, that plaintiff would have to prove that they were a model pedestrian displaying no blame for the incident. But if the plaintiff had been, say, jaywalking or engaging in another kind of negligent behavior at the time of the collision, then they would recover nothing from the defendant who hit them. Currently, Alabama, Maryland, North Carolina, and Virginia are the only states that still follow this harsh rule, in addition to Washington, D.C.

[View our state-by-state comparison of rules on apportionment of fault.]

Contributory negligence is a defense in claims based on ordinary negligence. It is not typically a defense to a claim based on a defendant’s gross negligence or wanton conduct. In general, it is not applicable in strict liability cases or in cases where the defendant violates a statute. 

A doctrine to counter this defense is called the “last clear chance doctrine,” which can apply to cases where the defendant had ample time and opportunity to avoid the accident after the plaintiff was negligent. A similar affirmative defense that also acts as a bar to recovery is called assumption of risk, which evaluates whether the plaintiff subjectively knew of the existence of the risk and accepted it anyway.  

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How do contributory negligence and comparative negligence differ?

Many states abandoned contributory negligence and shifted to a standard called comparative negligence in the 20th century. The notion that a plaintiff would have to show zero percent fault to recover any damages struck many states as too harsh. The newer standard, comparative negligence, generally apportions fault in tort cases proportionately to the wrongdoing of all parties. 

Comparative negligence usually manifests in two forms, though some states modify these approaches. 

  1. “Pure” comparative negligence. In this application, the plaintiff’s damages are directly proportionate to the fault attributable to the plaintiff. The plaintiff is not barred from recovering damages even when they are found to be mostly at fault. For example, if the plaintiff was found to be 75 percent at fault, and the defendant was found to be 25 percent at fault, the plaintiff can recover 25 percent of its damages from the defendant.
  2. “Modified” comparative negligence. This application does not permit a plaintiff to recover any damages if the plaintiff is found equally at fault – or in some states more at fault – than the defendant. In states that use modified comparative negligence, the plaintiff’s damages are reduced in proportion to the percent of plaintiff’s fault if the plaintiff is less than 50 or 51 percent at fault. This threshold can vary by state. In Connecticut and Delaware, if a plaintiff’s fault is greater than the defendant’s, then they receive no damages. In Arkansas and Colorado, the plaintiff’s fault can be equal to or greater than the defendant’s fault for the plaintiff to be barred from recovering damages. 

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When can apportionment of fault apply to third parties?

Some states explicitly require that the potential negligence of absent parties to the lawsuit be included in the apportionment of fault. For example, if three cars are involved in a collision, but the plaintiff sues only one other driver, the role of the nonparty driver must be included in deciding who is at fault and by how much. 

In other states, fault can only be allocated to nonparties under certain circumstances. In Alaska, for instance, allocating fault to third parties is called “equitable apportionment.” This allocation is codified, and it states that a defendant may add a third-party defendant whose fault may have been a cause of the damages claimed by a plaintiff. In Alabama, by contrast, apportionment of fault cannot apply to third parties. However, defendants may implead a third-party defendant who may be liable to them for all or part of the plaintiff’s claim. 

While some states prohibit such apportionment of fault, others give little to no guidance on allocating fault to nonparties. Litigators must do state-specific research to know if this kind of allotment is allowed and under what circumstances. Bloomberg Law maintains an up-to-date guide on apportionment of fault rules, including state-by-state guidance on contributory negligence, comparative fault, and third-party fault.

[View our state-by-state comparison of rules on apportionment of fault.]

How does allocation of liability work among joint tortfeasors?

When a plaintiff wins a tort action against more than one defendant, state law determines the allocation of liability among the joint tortfeasors. Diversity among states can make this a difficult topic to research, especially given the divergent approaches to apportioning fault. Each state has its own nuances but, generally, liability is decided by one of the three following methods.

Pure joint and several liability

With pure joint and several liability, if two or more defendants jointly cause harm, each can be held liable for the entire amount, no matter how much at fault they are. This is considered a harsh doctrine because it can mean that one defendant pays more than their apportioned share of liability. 

Pure several liability

In states with pure several liability (also called several-only liability), each defendant is liable only for their proportionate share of the total damages as determined by each defendant’s causal negligence. 

Modified joint and several liability

Some states practice modified joint and several liability, which imposes joint and several liability only in certain circumstances. That means researching how courts allocate liability among joint tortfeasors is necessary, as the application of these standards varies depending on the state. 

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