When you have a car accident or other personal injury case, two defenses that may be used by the defendant to minimize the damages paid to the plaintiff are comparative and contributory negligence.  These defenses  are based on an evaluation of possible fault on the plaintiff’s behalf.  There are three different versions of these defenses that may be applied; which defense may be chosen depends upon the laws of the state where the case is awaiting conclusion.

The defense that serves the biggest injustice to the plaintiff is by far contributory negligence.  If your case takes place in a state that allows contributory negligence, you, as the plaintiff, will recover no damages if the defendant can prove that you are even 1% responsible for the accident.  Suppose the defendant ran a stop sign and was speeding; if it is deemed that the plaintiff did not brake quickly enough or failed to swerve to avoid the accident, you may be found at fault, which means you will recover no damages.

Throughout the U.S., a defense of comparative negligence is much more common and less severe in terms of recovery to the plaintiff.  There are two versions of comparative negligence, commonly known as “pure” and “limited” comparative negligence.  Pure comparative negligence is simple to understand; if you are found to be 20% responsible for an accident, you could be compensated for 80% of the damages.  However, the opposite is true as well; if you are found to be 80% at fault, you would recoup 20% of the damages.  In this type of defense, you, as the plaintiff, will be assigned a percentage of the fault.  All other parties that were involved and alleged to hold partial responsibility for the damages would have the proper amount of fault assigned to them.  So, if it is found that you are entitled to 80% of the total damages, the remaining 20% would be apportioned between the other parties accordingly.

With “limited” comparative damages, it must be determined that you are no more than 50% responsible for the damages in order to receive any compensation.  If you are partially to blame for the accident but no more than 50% liable, the award of damages will be determined according to your portion of fault, and your award adjusted accordingly.  For example, if you are found to be 40% at fault in the damages that occurred in a car accident and the jury awards you $80,000, you would be entitled to $48,000 after 40%, or $32,000 was subtracted from the original $80,000 awarded.

In the example of limited comparative damages above, the jury or judge is responsible for determining the degree of negligence for each party, then apportioning a percentage of the total damages suffered accordingly to those parties.  If the jury or judge determined you, as the plaintiff, to be 51% liable in the accident, you would not collect any award.