The term comparative negligence refers to the doctrine in the law of negligence under which the negligence of the parties is compared, in the degrees of slight, ordinary, and gross negligence, and a recovery permitted, notwithstanding the contributory negligence of the plaintiff, when the negligence of the plaintiff is slight and the negligence of the defendant is gross, but refused when the plaintiff has been guilty of a want of ordinary care, thereby contributing to his injury, or when the negligence of the defendant is not gross, but only ordinary or slight, when compared, under the circumstances of the case, with the contributory negligence of the plaintiff.

“Where negligence by both parties is concurrent and contributes to injury, recovery is not barred under such doctrine, but plaintiff’s damages are diminished proportionately, provided his fault is less then defendant’s, and that, by exercise of ordinary care, he could not have avoided consequences of defendant’s negligence after it was or should have been apparent.” Rogers v. McKinley, 48 Ga.App.262.


Comparative Negligence is a principle within United States’ tort law that relates to fault and responsibility of both sides of an accident. The idea of negligence is that a person is responsible for creating an unreasonable risk of harm to others; the purpose of comparative negligence is to assign blame proportionately between two parties where both holds a degree of culpability for the accident. The calculation for comparative negligence is different from one state to another but the common ratio is 70/30 blame. It is commonly referenced in driving accidents; where both drivers are at fault for an accident and especially where they are both responsible for breaking the same laws then responsibility will rest equally between them and the related insurance pay-outs would be likewise proportional. There is a possibility that through the result of comparative negligence a person who is injured in an accident does not receive any compensation even if they were the only one injured. The sole factor regarding what either party is entitled to is responsibility for actions. Placing blame on the party whose actions led to the accident is a fair way of establishing if a person has a right to compensation.

Comparative negligence is a modification of the principles of contributory negligence. Prior to the introduction of comparative negligence in the 1960s a person would not be allowed to take a case wherein they held any degree of responsibility for the accident. Prior to the introduction of this principle, any party who was to blame for an accident could not sue for damages. There are 3 types of comparative negligence with the two most popular being based on the percent of blame apportioned to the defendant. One form requires that the plaintiff’s injuries not be greater than the defendants and the other requires that the plaintiff’s injuries are not as great as the defendants. The third type is referred to as pure comparative negligence and it is where if the plaintiff is 90% responsible for the accident they can recoup 10% of their loss. Although it would seem that there is little to no difference between them it is said that the differences can result in substantial loss adjustments or allocation of blame.

Deciding which actions should be deemed more important than others within an accident must be determined on an individual case basis but if either party is not legally compliant with regard to valid driver’s license, current insurance or vehicular malfunction they will automatically bear more liability than the either party. If one party to an accident is the one at fault but the other driver is unlicensed or uninsured, that party would be deemed to be at fault as they did not have a legal right to be driving on the road. In order to sue for comparative negligence a person must prove the basic elements of negligence as well, namely that the other party would have a reasonable idea that their actions could cause the result that they did, and that their actions actually did have a direct role in the accident.


Comparative Negligence Checklist

Historically: Contributory negligence → If π was at any fault AT ALL, no recovery.

Exception: “Last Clear Chance Rule”/Jackass Rule → If Δ had the last clear chance to avert danger and didn’t, then rule for the π. (But still all or nothing).

Rationale: If Δ had the chance to avoid the accident after the opportunity was no longer available to π, then Δ should bear the loss.

Now: System of shared fault (almost all jurisdictions) adopted.

McIntyre v. Balentine: Car accident where both π and Δ were drinking—but Δ was also speeding. Held: Ct. adopts a modified system of comparative negligence in Tenn.—Majority rule. Thus, since jury found parties equally at fault, π cannot recover.

If π is more than 49% at fault, then no recovery.

BUT…in a case of multiple Δs…If π is 40% at fault and other Δs are at fault individually less than πs, then π can still recover.

Modified systems have different wording in their statutes.

Seatbelt defense: π has duty to mitigate consequences and use reasonable care.

California: Pure form of comparative negligence: π can recover the % of damages that are Δ’s fault.  BUT…if π is so far behind the Δ’s negligence, they jury unlikely to award π damages.


Alvis v. Ribar, 421 N.E.2d 886 (Ill. 1981).

CONTRIBUTORY NEGLIGENCE v. COMPARATIVE NEGLIGENCE

The contributory negligence defense has been subject to attack because of its failure to apportion damages according to the fault of the parties. Under a comparative negligence standard, the parties are allowed to recover the proportion of damages not attributable to their own fault. The basic logic and fairness of such apportionment is difficult to dispute.

The defendants herein claim that no change of circumstances has been shown which would call for a change from the established doctrine of contributory negligence. The Illinois Defense Counsel, in its amicus curiae brief, relies on the words of Mr. Justice Powell for the proposition that change is not demanded by the public.

“[T]here is little evidence that the public generally is concerned. If indeed the present rule is as `archaic’ and `unjust’ as is contended, one would normally expect much greater support for the organized efforts being made to abolish it.” Powell, Contributory Negligence: A Necessary Check on the American Jury, 43 A.B.A.J. 1005, 1008 (1957).

It must be noted, however, that at the time of Mr. Justice Powell’s quoted assessment, only six States had adopted the doctrine of comparative negligence. That 30 additional States have since adopted the doctrine evidences that the basis for the assessment has changed and that today there is, indeed, a compelling public demand to abolish the old rule. Certainly, the concern which prompted the adoption of the rule can no longer support its retention. There is no longer any justification for providing the protective barrier of the contributory negligence rule for industries of the nation at the expense of deserving litigants. (Hoffman v. Jones (Fla. 1973), 280 So.2d 431, 437.) It must be pointed out that today most cases against industrial defendants are brought under the Worker’s Compensation Act, under which plaintiff’s negligence is not an issue. (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.; Maki v. 17*17 Frelk (1967), 85 Ill. App.2d 439, 441, rev’d on other grounds (1968), 40 Ill.2d 193.) The United States Supreme Court recognized the obsolescence of the rule in relation to present-day needs in one sphere of the law:

“The harsh rule of the common law under which contributory negligence wholly barred an injured person from recovery is completely incompatible with modern admiralty policy and practice.” (Pope & Talbot v. Hawn (1953), 346 U.S. 406, 408-09, 98 L.Ed. 143, 150, 74 S.Ct. 202, 204.)

Related entries