Contributory Negligence and Apportionment of Fault

[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.

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