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Contributory Negligence/Comparative Fault Chart

COMPARATIVE FAULT SYSTEMS IN ALL 51 JURISDICTIONS

Matthiesen, Wickert & Lehrer, S.C. has compiled a list of the various laws in every state dealing with whether the state is a contributory negligence state (bars recovery with only 1% of fault by the plaintiff) or a comparative negligence state (recovery by plaintiff is reduced or prohibited based on the percentage of fault attributed to the plaintiff, and whether the state is a pure comparative or modified comparative state). This list is useful in evaluating subrogation potential where there may be contributory negligence on the part of the insured. Please bear in mind that there are many exceptions within each state with regard to whether the particular fault allocation scheme applied in a particular state is applicable to a particular cause of action. Some states limit the application of the scheme to negligence claims, and avoid applying it to products liability cases, while other states have effective dates which may come into play and/or have rules which may modify the application of the particular scheme referenced. The list below should be used only as a guideline, and questions regarding specific fact situations should be directed to one of our subrogation lawyers.

Comparative fault systems fall into one of three basic types: contributory, pure, and modified negligence. The comparative fault standards for the 51 jurisdictions breakdown as follows:

Only five (5) states recognize the pure contributory negligence rule, which says that a damaged party cannot recover any damages if he is even one (1) percent at fault.

JURISDICTION	RULE	AUTHORITY
Alabama	Pure Contributory Negligence	Alabama Power Co. v. Schotz, 215 So.2d 447 (Ala. 1968).
District of Columbia	Pure Contributory Negligence	Wingfield v. People's Drug Store, 379 A.2d 685 (D.C. 1994).
Maryland	Pure Contributory Negligence	Board of County Comm'r of Garrett County v Bell Atlantic, 695 A.2d 171 (Md. 1997).
North Carolina	Pure Contributory Negligence	N.C.G.S.A § 99B-4(3).
Virginia	Pure Contributory Negligence	Baskett v. Banks, 45 S.E.2d 173 (Va. 1947).

Thirteen (13) states recognize the pure comparative fault rule, which allows a damaged party to recover even if it is 99 percent at fault, although the recovery is reduced by the damaged party's degree of fault.

JURISDICTION	RULE	AUTHORITY
Alaska	Pure Comparative Fault	Alaska Stat. §§ 09.17.060 & 09.17.080.
Arizona	Pure Comparative Fault	A.R.S. § 12-2505.
California	Pure Comparative Fault	Liv v. Yellow Cab, 119 Cal. Rptr. 858 (1975).
Florida	Pure Comparative Fault	F.S.A. § 768.81(2).
Kentucky	Pure Comparative Fault	K.R.S. § 411.182.
Louisiana	Pure Comparative Fault	L.S.A.- C.C. Art. 2323.
Mississippi	Pure Comparative Fault	M.C.A. § 11-7-15.
Missouri	Pure Comparative Fault	Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983).
New Mexico	Pure Comparative Fault	Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981).
New York	Pure Comparative Fault	N.Y. C.P.L.R. § 1411.
Rhode Island	Pure Comparative Fault	R.I.G.L. § 9-20-4.
South Dakota	Pure Comparative Fault	S.D.C.L. § 20-9-2 (complete bar of recovery for anything other than slight negligence).
Washington	Pure Comparative Fault	R.C.W.A. §§ 4.22.005-015.

Of the approximate 32 states that recognize the modified comparative fault standard, there are two competing schools of thought.

Twelve (12) states follow the 50 percent bar rule, meaning a damaged party cannot recover if he is 50 percent or more at fault, but if he is 49 percent or less at fault, he can recover, although his recovery is reduced by his degree of fault.

JURISDICTION	RULE	AUTHORITY
Arkansas	Modified Comparative Fault -- 50 Percent Bar	A.C.A. § 16-64-122.
Colorado	Modified Comparative Fault -- 50 Percent Bar	C.R.S. § 13-21-111.
Georgia	Modified Comparative Fault -- 50 Percent Bar	O.C.G.A. § 51-11-7.
Idaho	Modified Comparative Fault -- 50 Percent Bar	Idaho Code § 6-801.
Kansas	Modified Comparative Fault -- 50 Percent Bar	K.S.A. § 60-258a(a).
Maine	Modified Comparative Fault -- 50 Percent Bar	14 M.R.S.A. § 156.
Nebraska	Modified Comparative Fault -- 50 Percent Bar	Neb. Rev. Stat. § 25-21, 185.11.
North Dakota	Modified Comparative Fault -- 50 Percent Bar	N.D.C.C. § 32-03.2-02.
Oklahoma	Modified Comparative Fault -- 50 Percent Bar	Okla. Stat. Ann. Tit. 23, § 13.
Tennessee	Modified Comparative Fault -- 50 Percent Bar	McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).
Utah	Modified Comparative Fault -- 50 Percent Bar	U.C.A. §§ 78-27-37 & 78-27-38.
West Virginia	Modified Comparative Fault -- 50 Percent Bar	Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W. Va. 1979).

Twenty-one (21) states follow the 51 percent bar rule, under which a damaged party cannot recover if he is 51 percent or more at fault, but can recover if he is 50 percent or less at fault. Again, the recovery would be reduced by degree of fault.

JURISDICTION	RULE	AUTHORITY
Connecticut	Modified Comparative Fault -- 51 Percent Bar	C.G.S.A. § 52-572(h).
Delaware	Modified Comparative Fault -- 51 Percent Bar	1 Del. C. § 8132.
Hawaii	Modified Comparative Fault -- 51 Percent Bar	Haw. Rev. Stat. § 663-31.
Illinois	Modified Comparative Fault -- 51 Percent Bar	735 I.L.C.S. § 5/2-1116.
Indiana	Modified Comparative Fault -- 51 Percent Bar	I.C. § 34-51-2-6.
Iowa	Modified Comparative Fault -- 51 Percent Bar	I.C.A. § 668.3(1)(b).
Massachusetts	Modified Comparative Fault -- 51 Percent Bar	M.G.L.A. 231 § 85.
Michigan	Modified Comparative Fault -- 51 Percent Bar	M.C.L.A. § 600.2959 (at 51% fault, plaintiff’s economic damages reduced and non-economic damages are barred).
Minnesota	Modified Comparative Fault -- 51 Percent Bar	M.S.A. § 604.01(1).
Montana	Modified Comparative Fault -- 51 Percent Bar	Mont. Stat. § 27-1-702.
Nevada	Modified Comparative Fault -- 51 Percent Bar	N.R.S. § 41-141.
New Hampshire	Modified Comparative Fault -- 51 Percent Bar	N.H. Rev. Stat. Ann. § 507:7(d).
New Jersey	Modified Comparative Fault -- 51 Percent Bar	N.J.S.A. § 2A:15-5.1.
Ohio	Modified Comparative Fault -- 51 Percent Bar	Ohio Rev. Code Ann. § 2315.19(B)(4).
Oregon	Modified Comparative Fault -- 51 Percent Bar	O.R.S. § 18.470.
Pennsylvania	Modified Comparative Fault -- 51 Percent Bar	42 P.S. § 7102.
South Carolina	Modified Comparative Fault -- 51 Percent Bar	Nelson v. Concrete Supply, 399 S.E.2d 783 (S.C. 1991).
Texas	Modified Comparative Fault -- 51 Percent Bar	Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001-33.017.
Vermont	Modified Comparative Fault -- 51 Percent Bar	Vt. Stat. Ann. Tit. 12, § 1036.
Wisconsin	Modified Comparative Fault -- 51 Percent Bar	Wis. Stat. § 895.045(1).
Wyoming	Modified Comparative Fault -- 51 Percent Bar	Wyo. Stat. § 1-1-109(b).

In a contributory negligence jurisdiction, if the jury finds Betty was the least bit negligent and contributed to the accident, then Betty would recover nothing. Therefore, even if Betty is only 5% at fault and John is 95% at fault, Betty recovers $0.

In a comparative negligence jurisdiction, if a jury finds that Betty is 5% at fault and John is 95% at fault, Betty would still be able to recover, but her $10,000 in damages would be reduced by her 5% of fault, so that Betty would recover only $9,500.

Comparative negligence differs among states. For example, if Betty is found to be 50% at fault, and John 50% at fault, some comparative negligence states would still allow Betty to recover $5,000 (50% of her damages), while other states would prevent her from recovering at all because she is equally at fault with the other driver.

Still other states draw the line at 51%, following the principle that a plaintiff who is MORE negligent than a defendant should not be able to recover anything. For example, in Wisconsin, Betty would recover $5,000 if she is 50% negligent, but if she is 51% negligent, she would recover nothing.

Finally, there are 13 states which have "pure comparative negligence" law. This means that a jury could conclude that Betty is 90% at fault for the accident, and John was only 10% at fault, but Betty would still be able to recover $1,000 (her damages reduced by 90%).