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Can You Be Negligent and Still Win an Injury Case?

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By Daniel Taylor, Esq. on December 11, 2014 9:32 AM

In a personal injury lawsuit involving negligence, it's not always true that the person being sued was the only one at fault in causing the accident.

Often, the person who was injured was also partly negligent in causing his own injuries. Called contributory negligence, this fault on the part of the plaintiff can potentially be used as a defense by the defendant.

But is contributory negligence a complete defense to liability, or can a person who is negligent still win an injury case?

What Is Contributory Negligence?

Under the traditional rules of contributory negligence, if the person bringing the lawsuit was found even slightly negligent in causing his injuries, then he was barred from any recovery. For example, if an automobile accident was caused primarily by the negligence of another driver, but the person who was injured was also found negligent because he was speeding at the time of the accident, then the injured, speeding driver would be barred from recovery under contributory negligence -- even if his speeding was only responsible for 1 percent of his injuries.

This sort of "pure contributory negligence" is still the rule in a minority of states. In most others, however, the rule has been replaced by comparative negligence.

What Is Comparative Negligence?

Under comparative negligence, a plaintiff who is negligent can still recover for the percentage of his injuries caused by the negligence of the other party. There are three types of comparative negligence:

  1. Pure comparative negligence. Under this theory, a plaintiff can recover for any portion of his injuries caused by another party, even if the plaintiff was more at fault than the defendant.
  2. Modified comparative negligence. This rule modifies comparative negligence to only award a plaintiff who is no more than equally (in some states) or less (in other states) at fault than the defendant.
  3. Slight-gross comparative negligence. This rule only allows recovery by plaintiffs who are slightly negligent compared to the defendant's gross negligence.

To learn more about personal injury lawsuits, including the rules regarding legal liability, check out FindLaw's section on Accident and Injury Law.

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