All About Contributory Negligence and Comparative Negligence

Contributory negligence and comparative negligence can have a huge impact on your auto insurance claim if you live in a tort state. The difference between contributory negligence and comparative negligence is that insurance companies need to determine comparative negligence first, which is fault based on each driver's contribution to the accident. The driver with less fault in the accident will have contributory negligence. Both contributory negligence and comparative negligence can raise your auto insurance rates, so start comparing auto insurance quotes below to find cheaper coverage if you were in an accident.

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Rachel Bodine graduated from college with a BA in English. She has since worked as a Feature Writer in the insurance industry and gained a deep knowledge of state and countrywide insurance laws and rates. Her research and writing focus on helping readers understand their insurance coverage and how to find savings. Her expert advice on insurance has been featured on sites like PhotoEnforced, All...

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Leslie Kasperowicz holds a BA in Social Sciences from the University of Winnipeg. She spent several years as a Farmers Insurance CSR, gaining a solid understanding of insurance products including home, life, auto, and commercial and working directly with insurance customers to understand their needs. She has since used that knowledge in her more than ten years as a writer, largely in the insurance...

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Reviewed by Leslie Kasperowicz
Farmers CSR for 4 Years

UPDATED: Nov 12, 2020

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Contributory and comparative negligence play a crucial role in many car insurance claims. Unless you have a law degree, however, these terms can be difficult to understand. Today, we’re explaining everything you need to know about contributory and comparative negligence and how they may affect your car insurance claim.

What is Comparative Negligence?

Comparative negligence is a principle of tort law. Comparative negligence can come into play in all types of casualty insurance cases – including car insurance claims.

The basic idea behind comparative negligence is this: when an accident occurs, the fault and/or negligence of each party involved is based upon their respective contributions to the accident.

After an accident, insurers will analyze the incident, then assign blame. One driver may be 100% at-fault, for example, or it may be a 60/40 split. Your insurance payout will differ based on how the comparative negligence breaks down.

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How Does Comparative Negligence Work in Auto Insurance Claims?

Comparative negligence is a common part of auto accident insurance claims. After an accident, insurance companies will work to determine blame in an accident. Which driver was at-fault for the accident? If both drivers were at-fault, then which driver was more at-fault?

The insurance company is only liable for damages caused by the insured client. The insurance company’s goal is to pay the lowest amount possible on the claim. The company does not want to pay for damages it should not be paying for, which is why comparative negligence comes into play.

In order to determine comparative negligence, the insurance companies will review the actions that led to the accident. The insurance company may attempt to use defense lawyers to limit responsibility to the smallest possible extent. By the end of the process, the insurance companies determine comparative negligence and decide which driver was more responsible for the accident.

What is Contributory Negligence?

After determining comparative negligence, the insurance companies will award damages based on the fault of each driver.

In many accidents, neither driver is blameless. The fault doesn’t always lie 100% with one driver and 0% with the other driver. Insurance companies may determine comparative negligence to lie 40% with one driver and 60% with the other driver.

The driver who is found less responsible for the accident still has some fault assigned. However, because the fault is less than the other driver, the negligence attached to the less at-fault driver is called contributory negligence.

If you were found to be 40% at-fault for a collision, for example, and the other driver was found to be 60% at-fault, then your negligence would be called contributory negligence.

Comparative Negligence Can Reduce your Settlement

Let’s say you were involved in an accident. The other driver made an unsafe left turn into oncoming traffic directly in front of you. You T-boned the other vehicle.

The insurance companies analyze the accident. They determine that the other driver is mostly at-fault because the other driver broke traffic laws and made an unsafe maneuver.

However, you might be found to be, say, 20% at-fault for this accident because you were speeding at the time of the collision.

The insurance companies determine comparative negligence to be 80% on the other driver and 20% on you. Your contributory negligence is 20%.

This split will affect future insurance payouts. Let’s say there’s a total of $100,000 scheduled to be paid out by the insurance company to cover your vehicle damages, medical expenses, lost wages, and pain and suffering. Because insurance companies determined your contributory negligence to be 20% in this accident, your settlement will be reduced by 20%. You will only receive $80,000 out of the original $100,000 because you were 20% at-fault.

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Comparative and Contributory Negligence and Lawsuits

Contributory negligence often plays a role in car accident lawsuits.

In many cases, a defendant will use the contributory negligence of the plaintiff as a defense. Because the other driver was partially at-fault for the accident and was contributorily negligent, the other driver is owed less compensation.

From a legal standpoint, comparative negligence is a kind of negligent tort. The term “negligent tort” generally refers to damages you inflict on other people because of failure to exercise a certain level of care. A car accident is a good example of negligent tort. Negligent tort is different from intentional tort and liability tort. While negligent tort arises from your failure to exercise care, intentional tort refers to damages you deliberately inflicted on someone else. Liability tort, meanwhile, focuses on the act itself instead of the fault of the person committing the act.

Some drivers choose to file a civil lawsuit after a car accident. Tort law covers most civil lawsuits in the United States, and comparative negligence will play a crucial role in most car accident lawsuits.

Different States Have Different Rules Regarding Contributory and Comparative Negligence

In most states, comparative negligence simply reduces your payout after an accident. If you are 20% at-fault for an accident, then you will receive a settlement that’s 20% lower than normal.

However, rules can vary widely between states. There are generally three types of comparative negligence systems across the United States:

Pure Comparative Negligence: Pure comparative negligence jurisdictions include California, Florida, and New York, among other states. In these states, accident victims can recover some compensation for their injuries no matter how negligent they were while driving, even if their degree of fault is higher than the defendant’s degree of fault. If you were 90% at-fault for the accident and the other driver was 10% at-fault, then you may still be able to recover certain damages.

Modified Comparative Negligence: In modified comparative negligence states, an accident victim is limited in the ability to recover compensation after an accident if their fault exceeds a certain degree. Some states prevent victims from claiming any damages if they were more at-fault for the accident than the other driver, for example. Other states require the victim to be less than 50% responsible for the accident in order to recover. States with modified comparative negligence include Illinois, Colorado, Georgia, Massachusetts, Michigan, and Ohio.

Contributory Negligence: A small number of states in America still use the contributory negligence system. Under this system, drivers may be able to avoid liability entirely if they are able to prove that the accident victim’s own negligence contributed to the car accident. Alabama, Maryland, North Carolina, Virginia, and Washington DC all still use contributory negligence. In these states, a driver may be able to avoid any financial responsibility for the accident if the other driver was found to be even 10% or 20% at-fault.


Ultimately, comparative negligence refers to the “fault” that lies with each driver after an accident. After an accident, the insurance companies work to determine who was at-fault for the accident. If one driver is less at-fault, then that driver has contributory negligence: they contributed to the accident but were less at-fault than the other driver. Contributory and comparative negligence can play a crucial role in insurance payouts and civil lawsuits as you seek to recover compensation for your accident.

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