Contributory negligence is a common law tort rule (created by judges in court opinions, judicial decisions, or case law) that bars or prevents a plaintiff from recovering on a claim for negligence if the plaintiff contributed to the cause of the accident (was contributorily negligent) in any way. This rule may be referred to as pure comparative negligence.
Some states still apply the contributory negligence rule. But because of the harsh outcome of the contributory negligence rule, many state legislatures have enacted statutes that provide for comparative negligence or fault and reduce the plaintiff’s recovery by the amount of the plaintiff’s negligence or fault. This rule may be referred to as pure comparative fault.
Other states have enacted a modified comparative fault statute or law that reduces a plaintiff’s recovery by the plaintiff’s percentage of fault, but bars a plaintiff from any recovery if the plaintiff is 50% or more at fault for the cause of the accident.
And in South Dakota, the comparative fault system uses a slight/gross negligence system and only analyzes the comparative fault if the plaintiff’s negligence is slight and the defendant’s negligence is gross. Under this slight/gross negligence system, if the plaintiff’s negligence is more than slight and the defendant’s negligence is less than gross, the plaintiff is barred or prohibited from any recovery.
These contributory negligence and comparative fault laws vary from state to state and may change or evolve at any time—whether they are located in court opinions or in statutes.
In Texas, the rule of contributory negligence has been replaced by a system of proportionate responsibility, commonly referred to as modified comparative fault. Under Texas law, specifically under the Texas Civil Practice and Remedies Code, Chapter 33, a plaintiff's recovery is reduced by their percentage of fault. However, if the plaintiff is found to be more than 50% responsible for the accident, they are barred from recovering any damages. This is known as the '51% bar rule.' Texas does not follow the pure contributory negligence rule, which completely bars recovery if the plaintiff is found to be even slightly at fault, nor does it follow the pure comparative fault system that allows a plaintiff to recover damages regardless of their level of fault. Instead, Texas's modified comparative fault system aims to allocate damages in proportion to the degree of fault attributed to each party involved in the incident.
