What is Contributory Negligence?

States use various principles to apportion fault in personal injury cases. They might use a contributory negligence standard or a comparative fault standard. Contributory negligence is a legal doctrine in which a plaintiff receives no damages if they are in any way at fault for the accident. Comparative negligence standards work differently, apportioning damages based on fault or eliminating damages if the plaintiff is substantially to blame for the accident.

Defendants in personal injury cases commonly raise contributory negligence or comparative fault defenses. They hope to reduce or eliminate their financial liability by doing so. In Texas and Louisiana, injured victims may still be able to recover even if they are partially at fault.

Understanding Contributory Negligence

Contributory negligence is the most strict standard that states can adopt. In these states, a plaintiff may not recover if they are at fault for the accident in any way. This could mean that the plaintiff was only 1% at fault and yet is unable to collect the other 99% of damages that would have been owed them.

Historically, contributory negligence was the prevailing doctrine in old English law and for many states. Only five states still use this particular standard:¹

Alabama
Maryland
Virginia
District of Columbia
North Carolina

Over time, many states have moved away from this apportionment method as it often creates harsh results. Even Washington, D.C. has softened it for certain vulnerable vehicles and bicycles.² The remaining states may eventually shift away from this strict legal doctrine in favor of comparative negligence, as most have done.

Comparative Negligence in Personal Injury Lawsuits

Comparative negligence is a similar tort principle but with much different results. Unlike in contributory negligence, many plaintiffs can still recover even if they were partially at fault for the accident. States use two primary types of comparative negligence:

Pure Comparative Negligence

A pure comparative negligence standard reduces the plaintiff’s total damages by their assigned percentage of fault. This means that plaintiffs can still recover compensation if they are not 100% at fault for their injuries. For example, if a jury finds that the plaintiff was 85% at fault, they can recover 15% of their total damages.

Nearly one-third of states follow a pure comparative negligence standard, which they find to be much fairer than the contributory negligence doctrine.

Modified Comparative Negligence

Many states use a modified comparative negligence standard instead. There are two types of modified comparative negligence:

50 percent rule: A plaintiff may not recover any compensation if they are 50% or more at fault for the accident.
51 percent rule: A plaintiff may not recover if they are 51% or more at fault for their damages. Parties equally at fault may still recover under this system.

If a plaintiff’s fault is low enough to recover compensation, that compensation is still reduced by the percentage of fault attributed to the plaintiff. For example, imagine a plaintiff in a car accident is found to be 35% at fault. This is lower than the 50% or 51% threshold, so the plaintiff can still win damages. However, the plaintiff’s total damages are reduced by 35% to account for their comparative fault.

What Laws Apply in Texas and Louisiana?

Texas and Louisiana both use comparative negligence rather than contributory negligence. However, they each use their own version of this doctrine.

Texas Law

Texas uses a modified comparative negligence approach. Under the Texas comparative fault law, a person may not recover compensation if they are 51% or more at fault for their damages.³ Those assigned 50% or less of the blame can still recover compensation, subject to an appropriate reduction of those monetary damages.

Louisiana Law

The Louisiana comparative fault statute is a pure comparative negligence law.⁴ A jury assigns the percentage of fault to each party, and the plaintiff’s damages are reduced by the percentage of fault attributed to them. This means that plaintiffs could recover even if they were 99% at fault for their injuries. However, they would be entitled to only 1% of their total damages.

How Is the Percentage of Fault Determined?

An important step in any personal injury case is determining who is at fault. A single party may be at fault, or multiple defendants may be to blame. In other cases, a plaintiff may also be partially at fault for their harm.

The “trier of fact” must determine the percentage of fault attributable to each party. The trier of fact is usually a jury. It will be the judge if the case is a bench trial where the judge makes the ultimate findings. The trier of fact will consider evidence such as:

Witness testimony about how the accident occurred
Video or audio evidence concerning the accident
Whether the plaintiff’s actions caused the accident or made it worse
Whether the plaintiff failed to take appropriate actions to mitigate their damages
Police testimony about the cause of the accident
Expert testimony and accident reconstructions

These and other evidence types are essential to determining who was at fault and in what percentage. This is far from an exact science, and it is often subjective. Highly experienced personal injury attorneys understand how to handle these cases.

Winning Compensation in Partial Fault Cases

Just because a defendant accuses a plaintiff of partial blame does not make it true. Many defendants raise a contributory or comparative negligence defense as part of their ordinary practice. Some use it as a tactic to force a low settlement. A plaintiff may not be at fault in any way and still not recover full compensation.

Even when a plaintiff is partially at fault, they may still recover damages depending on the circumstances. Compensation might include:

Property damages
Past and future medical costs
Costs of rehabilitation
Pain and suffering
Loss of consortium
Punitive damages in limited cases

Legal Representation Can Help

For plaintiffs in contributory or comparative negligence states, the right legal assistance can make all the difference. A personal injury attorney can review the case and identify issues with contributory fault.

Sources:

Morris & Dewett provides this information to the public for general education and interest. The firm does not represent clients in every topic discussed in answers to frequent questions. The information is curated and produced based on questions commonly asked or search terms commonly used. Every effort is made to provide accurate information. Do not make any decision solely based on the information provided, please seek relevant counsel for each topic area. Consult an attorney before making any legal decision, consult a doctor before making any medical decision, and consult a financial advisor before making any fiscal decision. Information provided is not legal advice. If you have any legal needs, please do not hesitate to contact us. We are pleased to assist you if we can or provide a referral to another attorney if we cannot.