Contributory and Comparative Negligence – The victim’s negligence can also contribute to the accident. In a few states, the negligence of the injured party will be considered while determining the liability of the at fault party. This is referred to as comparative negligence. In some states, if the injured person’s negligence is a contributory factor to the injury, then the injured person cannot sue for compensation. This is known as contributory negligence.
Under comparative negligence, the plaintiff’s fault reduces but does not entirely eliminate the defendant’s liability for the plaintiff’s injury. The jury is assigned the task of quantifying the degree of fault and the damages are based on the numbers they come up with. If the speeding driver is 80 percent responsible for the accident, the driver pays 80 percent of the damages and the pedestrian is left to bear 20 percent of the cost. Or if the inattentive pedestrian is hit by two speeding drivers each of whom is equally responsible, they each pay 40 percent and she pays 20 percent. In the McDonald’s coffee case, the jury decided that the plaintiff, Stella Liebeck, was 20 percent responsible for the accident because she wasn’t careful enough in taking the lid off the coffee cup, so it reduced her compensatory damages from $200,000 to $160,000.
States have adopted different rules of comparative negligence to take account of these possibilities. The basic split is between a pure comparative negligence system, under which the plaintiff can always recover some amount, even if the defendant is only 1 percent responsible, and various modified comparative negligence systems, under which the plaintiff can only recover if she is not as (50 percent) or more (51 percent) responsible than the defendant.
Contributory negligence is conduct on the part of the plaintiff below a reasonable standard of care for self-protection that contributes along with the defendant’s behavior to the plaintiff’s injury. A pedestrian ignores a “Don’t Walk” sign and steps into an intersection wherein she is struck by a car going 20 m.p.h. over the speed limit. The driver was negligent in speeding and could have avoided the accident if he had been going at a safe speed. But the pedestrian also was negligent in not observing the sign, and her negligence contributed to her being injured. If the pedestrian sues, the driver can use her negligence to cancel out his negligence, so that he would not be liable.