---
title: "Comparative Negligence"
type: Legal Rule
source: https://casebriefly.com/legal-rules/comparative-negligence
---

# Comparative Negligence

A system that apportions fault between plaintiff and defendant, reducing the plaintiff's recovery by their percentage of fault rather than completely barring the claim as under contributory negligence.

## Definition

Comparative negligence is a defense to negligence that reduces the plaintiff's recovery in proportion to the plaintiff's own fault. It replaced the harsh contributory negligence rule in most American jurisdictions because the all-or-nothing nature of contributory negligence was widely viewed as unjust. Under comparative negligence, a plaintiff who is partially at fault can still recover, but the award is reduced by the plaintiff's percentage of responsibility.

There are two main forms. Pure comparative negligence allows the plaintiff to recover no matter how great the plaintiff's fault — even a plaintiff who is 99% at fault can recover 1% of damages. Modified comparative negligence bars recovery if the plaintiff's fault exceeds a certain threshold, typically 50% (the plaintiff's fault must not be greater than the defendant's) or 51% (the plaintiff's fault must be less than the defendant's). The pure form is used in approximately a dozen states, while most states use a modified version.

The adoption of comparative negligence has had ripple effects throughout tort law. It has influenced the treatment of joint and several liability, the assumption of risk defense, and the last clear chance doctrine (which becomes unnecessary under comparative fault). Courts must instruct juries on how to apportion fault, which introduces factual complexity. The Restatement (Third) of Torts endorses the comparative responsibility approach and provides guidance on apportionment among multiple parties.

## Elements

- The plaintiff was also negligent or at fault in causing the injury
- The trier of fact assigns a percentage of fault to each party
- The plaintiff's recovery is reduced by their percentage of fault
- Under modified systems, recovery is barred if the plaintiff's fault exceeds the threshold (50% or 51%)
- Under pure systems, the plaintiff can recover regardless of fault percentage

## Key Case

Li v. Yellow Cab Co., 13 Cal.3d 804 (1975)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Li v. Yellow Cab Co. | 13 Cal.3d 804 (1975) | Judicially adopted pure comparative negligence in California, replacing contributory negligence and becoming a model for other states. |
| McIntyre v. Balentine | 833 S.W.2d 52 (Tenn. 1992) | Judicially adopted modified comparative negligence (49% bar) in Tennessee, providing a thorough analysis of the competing approaches. |
| Hoffman v. Jones | 280 So.2d 431 (Fla. 1973) | Florida Supreme Court adopted pure comparative negligence, reasoning that the contributory negligence bar was inconsistent with modern principles of fairness. |
| Knight v. Jewett | 3 Cal.4th 296 (1992) | Analyzed the relationship between comparative negligence and assumption of risk, distinguishing primary from secondary assumption of risk. |

## Exam Tips

- Always specify which type of comparative negligence applies — pure or modified (50% vs. 51% bar) — as the outcome can change dramatically.
- Calculate the damages mathematically: if the plaintiff is 30% at fault and damages are $100,000, recovery is $70,000.
- Discuss how comparative negligence interacts with other doctrines like joint and several liability and assumption of risk.
- Remember that last clear chance is generally subsumed by comparative negligence and need not be analyzed separately.

## Common Mistakes

- Confusing pure and modified comparative negligence — under modified systems, the plaintiff may be completely barred if their fault is too high.
- Forgetting that comparative negligence is the majority approach in the US, while contributory negligence survives in only a handful of jurisdictions.
- Failing to address how the jurisdiction handles multiple defendants in the fault apportionment.

## Mnemonic Or Memory Aid

Compare and reduce, don't completely refuse. Pure = always recover something. Modified = barred at the threshold.

## Related Rules

- contributory-negligence
- assumption-of-risk
- joint-and-several-liability
- reasonable-person-standard

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Source: [Comparative Negligence — CaseBriefly](https://casebriefly.com/legal-rules/comparative-negligence)