Comparative fault
A doctrine that reduces a claimant’s damages by the percentage of fault attributed to them.
What it means in practice.
States and countries vary: pure comparative reduces by the percentage with no bar to recovery; modified-50 bars recovery if the claimant is 50% or more at fault; modified-51 bars at 51%; contributory bars if the claimant is even 1% at fault.
Comparative fault means the court divides responsibility for an accident in percentages, among the defendants and the injured person, and adjusts the damages to match. It replaced the old all or nothing rule of contributory negligence in most of the US.
The systems differ in what happens when the injured person carries a large share. Under pure comparative fault the award is only reduced. Under modified comparative fault it is reduced up to a bar, at 50% or 51%, and then lost. South Dakota uses a rule of its own: recovery only if your negligence was slight compared with the defendant’s.
Outside the US the same idea goes by the name contributory negligence. In England and Wales, damages are reduced to the extent the court thinks just and equitable.
How it works, step by step.
| System | How it works | Source |
|---|---|---|
| Pure comparative (California) | Your share reduces the award but never bars it, even at 90%. | Li v. Yellow Cab Co. (Cal. 1975) |
| 50% bar (Tennessee) | Reduced by your share; nothing at 50% or more. | Binns v. Trader Joe’s East (Tenn. 2024) |
| 51% bar (Texas) | Nothing if your share is greater than 50%. | Tex. Civ. Prac. & Rem. Code § 33.001 |
| Slight versus gross (South Dakota) | Recovery only if your negligence was slight in comparison with the defendant’s; it is a comparison, not a percentage line. | S.D. Codified Laws § 20-9-2 |
| Contributory negligence (Maryland) | Any negligence of your own that contributed bars recovery. | Coleman v. Soccer Association of Columbia (Md. 2013) |
| Apportionment (England and Wales) | Damages reduced to the extent the court thinks just and equitable. | Law Reform (Contributory Negligence) Act 1945, s 1(1) |
A worked example.
Fault split three ways: Morga v. FedEx Ground (N.M. Ct. App. 2018)
- Crash
- A FedEx truck hit a stopped or slow pickup from behind at 65 mph, 22 June 2011
- FedEx
- 65%
- Its contractors and driver
- 30%
- The pickup driver, Ms. Morga
- 5%
- Verdicts
- $61 million for the daughter’s death, $32 million each for the mother and son; affirmed
Comparative fault puts a percentage on everyone whose conduct played a part, including the people who were hurt. No punitive damages were awarded.