The legal doctrines known as comparative negligence and contributory negligence deal with the relative fault of the parties to a personal injury claim.
The contributory negligence doctrine means that a plaintiff (the person making a personal injury claim) who fails to observe ordinary care for his own safety is contributorily negligent and thus is barred from any compensation for his injuries, regardless of the amount of a defendant’s primary negligence (the fault of the person who primarily caused the injuries). It is generally regarded as an all-or-nothing proposition (sometimes, though, that is not the case because of certain other relevant legal doctrines such as “last clear chance,” which is beyond the scope of this discussion). Therefore, if a plaintiff’s own negligence is found to have caused or contributed to his own injuries, he cannot recover monetary damages from the person(s) who primarily caused his injuries because of his own contributory negligence.
The comparative negligence doctrine comes in several forms. The “pure” comparative negligence doctrine does not absolutely bar a contributorily negligent person from any recovery but instead measures the extent of his contributory fault against the fault of the other persons at fault and reduces his recovery in the proportion that his contributory fault bears to the total fault causing or contributing to the injury. The reduction could be from 1% to 99%. A “modified” comparative negligence doctrine bars any recovery, and thus is similar in result to the contributory negligence doctrine, if the injured person’s contributory fault reaches a certain proportionate level. In some jurisdictions, the level is 50%; in others, it is anything over 50%. If the contributory fault is below that threshold, there will be a recovery but the amount of the recovery will be reduced.
The doctrine of contributory negligence surfaced in the United States in 1824 in a Massachusetts case and thereafter gained acceptance in the U.S. courts and it remained that way for a long time. However, the U.S. Congress opted for comparative negligence with the enactment in 1908 of the Federal Employer’s Liability Act. By 1913, Mississippi, Georgia, and Nebraska had adopted the comparative negligence doctrine, followed during the 1930s, 1940s, and 1950s by Wisconsin, South Dakota, and Arkansas. Five more States adopted comparative negligence in the 1960s. South Carolina and Tennessee were the last two States to adopt comparative negligence in the early 1990s.
In 33 States, the change from contributory negligence to comparative negligence was accomplished by statute (Arizona, Arkansas, Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Vermont, Washington, Wisconsin, and Wyoming).
In 12 States, the change was made by a court decision from the State’s highest court (Alaska, California, Florida, Illinois, Iowa, Kentucky, Michigan, Missouri, New Mexico, South Carolina, Tennessee, and West Virginia).
In Iowa, a statute adopting a modified form of comparative negligence was enacted following a court decision that adopted a pure form of the doctrine.
The adoption of comparative negligence by the U.S. Federal Government was entirely by statute.
Currently, 46 States, the Federal Government, Puerto Rico, the American Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands have adopted either a pure or modified comparative negligence standard. Only Maryland, Virginia, North Carolina, Alabama, and the District of Columbia retain contributory negligence. The Maryland Court of Appeals (Maryland’s highest state appellate court) has adhered to contributory negligence as an absolute defense to negligence actions since its adoption in 1847.
Twelve States and three of the American territories have adopted the “pure” form of comparative negligence (Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, Washington, Puerto Rico, American Samoa, and the Northern Mariana Islands). Twelve States have adopted the form of comparative negligence under which an injured person may recover only if his proportionate contributory negligence is less than 50% (Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia). Twenty one States have adopted the form of comparative negligence under which an injured person may recover only if his proportionate contributory negligence does not exceed 50% (Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming; also the American Virgin Islands). (In South Dakota, the injured person may recover if his contributory negligence was “slight in comparison with the negligence of the defendant.”).
At least two States that initially adopted a “pure” form of comparative negligence later replaced it with a modified form but no State that replaced contributory negligence with any form of comparative negligence has reversed that decision and re-adopted contributory negligence.
Whether your State is a contributory negligence state or a comparative negligence (pure or modified) state, you owe it to yourself to investigate your potential medical malpractice claim to determine if you are entitled to compensation. Our website can connect you free of charge to medical malpractice lawyers in your local area who can help answer your medical malpractice questions. You may also reach us toll free at 800-295-3959.