Let’s say you just got served with a new complaint from a customer who alleges that they were hurt while on the premises of your business. An important first question in analyzing that lawsuit is whether it was filed in a jurisdiction that applies principles of contributory negligence or comparative negligence. Contributory negligence and comparative negligence are both doctrines that courts use to determine liability in personal injury cases. However, the similarities between the two doctrines end there, and which doctrine applies can determine the outcome of a case.

Contributory negligence is the older of the two legal doctrines. The concept originated in England in the 19th century, and many states in the U.S. adopted it in the early days of this country. Under the rules of contributory negligence, a plaintiff whose conduct contributed to their own injury in any way—no matter how small or how minor—is completely barred from recovering damages. Accordingly, in a state that applies the principles of contributory negligence, a plaintiff who is found to be even 1% at fault for their own injuries cannot recover any damages from a defendant who is found to be 99% at fault for those injuries.

Over time, many courts and legislatures came to view the results of the contributory negligence rule as harsh or unfair, and they abandoned that doctrine in favor of comparative negligence. Unlike its predecessor, comparative negligence allows for the apportionment of damages based on the degree of fault of each party. Therefore, if a state applies the rules of comparative negligence, a plaintiff who was partially at fault for their own injuries can still potentially recover damages from the defendant.

Generally, the amount of damages awarded to a plaintiff in a comparative negligence state will be reduced by the percentage of fault assigned to the plaintiff. For example, if a jury awards a plaintiff $1,000,000 but finds that the plaintiff was 25% at fault, the recovery will be reduced by 25% and the plaintiff will recover $750,000. However, there are two different types of comparative negligence: pure comparative negligence and modified comparative negligence. In a pure comparative negligence jurisdiction, a plaintiff who is partially responsible for their injuries can recover damages against another responsible party regardless of their own degree of fault. For example, if a jury finds that the plaintiff was 80% at fault for their own injuries, and the defendant was 20% responsible, the plaintiff can recover 20% of the awarded damages. In contrast, in a jurisdiction that applies the rules of modified comparative negligence, the plaintiff can only recover damages if their degree of fault falls below a certain threshold, usually 50% or 51%. If the jury finds that the plaintiff’s degree of fault is above that threshold, then the plaintiff is barred from recovering any percentage of the damages.

Today, most jurisdictions apply some form of comparative negligence. However, a handful of states, including Virginia, still apply the rules of contributory negligence. In these states, contributory negligence can be a strong defense. Take, for example, a slip and fall case in a retail establishment, which is a common type of premises liability lawsuit. There are many ways in which a plaintiff who has filed a slip and fall lawsuit may have been partially at fault for their injuries—such as by not heeding a warning, being distracted while on their phone or otherwise not paying attention, walking or running too fast for the circumstances, or being intoxicated. Any of these actions can potentially support a finding of contributory negligence. Of course, even if a jurisdiction does apply the rules of contributory negligence, the defendant still has the burden of proving that the plaintiff acted negligently and that their conduct was a cause of their injuries.

Because of the effect that these two doctrines can have on a premises liability lawsuit, understanding at the outset which doctrine applies is essential to the initial assessment of a case and the development of a case strategy.

If you have questions about this article or about negligence and premises liability in general, please contact Danielle Brim (dbrim@setlifflaw.com) at (804) 377-1264 or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.