Comparative vs. Contributory Fault: What’s the Difference?

The concepts of fault and negligence are always at the center of a personal injury case. Determining fault is a crucial part of not only deciding whether or not you have a case, but also how much that case could be worth.

For starters, it is important to understand the underlying concept of negligence. “Negligence” is a legal term for failing to take proper/reasonable care or conducting oneself in some way that creates an unreasonable risk of harm to others. In order to prove negligence in a personal injury case, such as a car accident, the plaintiff will have to prove:

  • The defendant owed a “duty of care” to the plaintiff. In other words, the responsible party owed the plaintiff some sort of reasonable care for his or her safety. In the case of a car accident, every driver has a legal duty to drive safely and not put other drivers in harm’s way.
  • The defendant violated that duty. For this step, you must prove that the defendant acted in some unreasonable way that put you in harm’s way. Using the example of a car accident, this could include being intoxicated behind the wheel or blowing through a red light.
  • The plaintiff suffered injuries. You must prove that the defendant’s conduct caused actual harm to you. This harm could be physical or psychological, but it must be well-documented and backed up by medical records.
  • The defendant’s conduct was the proximate cause of the plaintiff’s injuries. This means that the plaintiff’s injuries were the direct result of the defendant’s conduct.


Once negligence has been established, you can begin to explore contributory negligence. “Contributory negligence” is the term for conduct that creates an unreasonable risk of harm to oneself. In other words, if the defendant’s conduct is deemed negligent, the defendant and his or her attorney could argue that you, as the plaintiff, had a significant role in the accident as well—this is called contributory negligence.

For example, say John was walking down a busy street in town. He fails to look both ways before crossing and doesn’t see that the “Don’t Walk” sign is flashing. A driver, who is texting while driving, goes through the green light and hits John, causing $50,000 worth of medical bills. John can certainly argue that the driver was negligent by texting while driving and failing to yield for a pedestrian. However, the driver could argue that John was also significantly at fault in the accident for crossing without looking both ways and entering the roadway with a “Don’t Walk” sign—this constitutes contributory negligence.

Contributory negligence sets the stage for comparative negligence. Comparative negligence is simply the combination of the defendant’s negligence and the plaintiff’s (contributory) negligence.

New Jersey operates under a modified comparative negligence system. Under this system, total damages are reduced by the amount of the plaintiff’s fault. This system benefits plaintiffs because it still allows you to collect damages when you were partially at fault in the accident. It also benefits defendants by reducing the amount of damages he or she has to pay when the accident was not entirely their fault.

Under a modified comparative fault system, the total damages are reduced by the plaintiff’s percentage share of fault. If the case is tried in court, the judge or jury will assign percentage levels of fault to both the plaintiff and defendant; if it is settled out of court, the opposing attorney or insurance adjuster can use this concept of comparative fault to argue for reduced damages. Using the pedestrian/car accident example, say the court or attorneys establish that each party was 50 percent at fault in the accident. Therefore, the plaintiff would only be eligible to win $25,000, rather than the full $50,000 in damages.