What is Comparative Negligence?
Comparative negligence is the legal mechanism that measures the contributions of all involved parties to an accident. States that apply comparative negligence in personal injury lawsuits allow plaintiffs to recover damages from all at-fault parties, even if they themselves contributed to the accident in some way.
Say, for example, you are driving, and another car hits your truck in the rear after you’ve come to a complete stop at a red light. In this scenario, it seems clear that the driver who hit you is at fault. But what if you stopped short at the light? What if the driver who hit you was rear-ended by a third vehicle?
In these instances, multiple parties may be in the wrong. But who is most at fault? Whose insurance company must pay, and how much? This is where comparative negligence comes in, and it can often be a deciding factor in determining how much a plaintiff recovers after an accident.
Need to Know:
- Negligence is when a party’s unreasonable conduct cause damage or injury to another party. Comparative negligence is a type of negligence that applies when multiple parties are responsible for the accident.
- When comparative negligence applies, a plaintiff’s compensation will be reduced in proportion to his or her own degree of fault. A plaintiff who is 30% responsible for an accident will only be able to receive 70% of the awarded damages.
- Pure comparative negligence allows plaintiffs to recover damages even if they were 99% responsible for the accident. Modified comparative negligence sets a limit on how much fault someone can have before they are barred from recovery.
- Most states, including New York, apply some form of comparative negligence in civil lawsuits. Other states follow a stricter contributory negligence standard.
In this Article:
- Types of Comparative Negligence: Pure vs Modified
- Comparative Negligence in New York State
- The Difference Between Comparative and Contributory Negligence
- Assumption of Risk and Comparative Negligence
- How is Comparative Negligence Used in Court? A $3,620,000 Case Study
Types of Comparative Negligence: Pure vs Modified
Comparative negligence typically takes one of two forms: pure comparative negligence or modified comparative negligence. Different states have different rules for which subtype is applied in personal injury cases, and some even use different comparative negligence standards in different types of cases.
New York, for example, uses a modified comparative negligence standard in motor vehicle accidents, but a pure comparative negligence standard in other personal injury cases.
Pure Comparative Negligence
In states that apply pure comparative negligence, the full spectrum of fault is at play. Parties can be anywhere from 1% to 99% at fault for an accident, and plaintiffs can recover damages even if the court decides they are the most responsible party. However, the damages will be reduced by the plaintiff’s own degree of liability.
States that apply pure comparative negligence are:
- Alaska
- Arizona
- California
- Kentucky
- Mississippi
- Missouri
- New Mexico
- New York (in all cases except motor vehicle accidents subject to Article 51 of the Insurance Law)
- Rhode Island
- Washington
For example, imagine an intersection accident involving two drivers. Both drivers failed to stop at their respective stop signs, causing the collision. Through the lawsuit process, it’s determined that Driver A was 40% responsible for the accident, while Driver B was 60% responsible.
In states that apply pure comparative negligence for motor vehicle accidents, both drivers can recover damages, but those awards will be reduced proportionally to their fault. If the total award for Driver A is $100,000, he will be able to receive $60,000 – a 40% reduction in accordance with his own fault. Similarly, if Driver B is also awarded $100,000 in damages, he will receive $40,000.
Modified Comparative Negligence
Most states apply modified comparative negligence rules. Modified comparative negligence often sets a limit for fault, meaning that plaintiffs who surpass that limit will not be able to recover damages.
Though 36 states in total follow modified comparative fault rules, different states set different limits for fault.
Ten states currently maintain that parties found to be 50% or more responsible for an accident cannot receive any compensation. This is sometimes referred to as the 50% Bar Rule, and it is followed in:
- Arkansas
- Colorado
- Georgia
- Idaho
- Kansas
- Maine
- Nebraska
- North Dakota
- Tennessee
- Utah
Simply put, plaintiffs in 50% Bar Rule states can only recover if the defendant’s fault exceeds their own.
In other modified comparative negligence states, plaintiffs cannot recover damages if they are more at fault for an accident than the person or persons they sued. This is sometimes called the 51% Bar Rule, because plaintiffs can only recover if they are less than 51% at fault.
Twenty-six states currently adhere to this standard:
- Connecticut
- Delaware
- Florida
- Hawaii
- Illinois
- Indiana
- Iowa
- Louisiana (for accidents dated after January 1, 2026)
- Massachusetts
- Michigan
- Minnesota
- Montana
- Nevada
- New Hampshire
- New Jersey
- New York (for motor vehicle accidents only)
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- South Carolina
- Texas
- Vermont
- West Virginia
- Wisconsin
- Wyoming
Slight/Gross Negligence
South Dakota is the only state to follow the “slight/gross” rule, a form of modified comparative negligence. Rather than set a hard limit on the amount of fault for each party, South Dakota uses the much looser terms “slight” and “gross” to determine each party’s degree of negligence. Plaintiffs can only recover damages if their degree of negligence is “slight,” while the defendant’s degree of negligence is “gross.”
It is up to the court to decide which party is slightly at fault and which party is grossly at fault.
Comparative Negligence in New York State
New York once adhered to pure comparative negligence in all personal injury cases. However, in 2026, tort reforms to New York Civil Practice Law and Rules § 1411 were passed to modify the state’s comparative negligence system.
In most practice areas, New York’s pure comparative negligence system remains the same. Victims of construction accidents, premises liability incidents, and other personal injury matters will have their damages reduced by their percent of fault, but there is no limit to prevent recovery. Plaintiffs who are determined to be 1% to 99% at-fault can still receive compensation.
As of May 2026, accidents subject to Article 51 of New York’s Insurance Law – primarily motor vehicle accidents — are treated differently. Motor vehicle accident plaintiffs in New York can now only recover if their degree of fault is not more than the defendant’s degree of fault. Lawsuits filed before the change went into effect will still adhere to the pure comparative negligence standard.
The Difference Between Comparative and Contributory Negligence
While comparative negligence considers the degree to which all parties are responsible and makes room for recovery, contributory negligence bars plaintiffs from recovery if they have any fault at all. Even plaintiffs as little as 1% at-fault cannot recover damages.
Because this standard is so strict, not many states follow it. Only four states plus Washington, D.C. adhere to contributory negligence:
- Alabama
- Maryland
- North Carolina
- Virginia
The Relationship Between Assumption of Risk and Comparative Negligence
If you are injured while riding a roller coaster, or while working on the notoriously haphazard machine at work, will that decrease your chances of a favorable comparative negligence outcome? That depends on the legal principle known as assumption of risk.
Assumption of risk is a common defense used in personal injury lawsuits to argue that plaintiffs understood the potential hazards associated with an activity and decided to do it anyway. Defendants who prove the plaintiff knowingly took the risk may successfully reduce – or negate – the damages that plaintiff can recover.
In comparative negligence states, assumption of risk is often used to claim that a plaintiff is at least partially at fault for an accident.
The types of assumption of risk include:
- Express assumption of risk, in which a plaintiff was explicitly made aware of the inherent dangers in an activity and proceeded anyway. This is usually relevant when a plaintiff signs a waiver.
- Implied assumption of risk, in which a plaintiff proceeds with an activity that is known to include inherent harm. This might include something like dirt biking or playing contact sports.
How Is Comparative Negligence Used in Court? A $3 Million Case Study
Our client, a delivery truck driver, was making a routine beverage delivery at an upper Manhattan Fairway supermarket. While walking around the delivery area, our client stepped backward off the curb and ended up directly in the path of a forklift. The forklift struck him, causing serious leg injuries including a displaced comminuted fracture and back injuries that ultimately required a two-level lumbar fusion surgery to treat.
Fairway immediately attempted to place 100% of the blame on our client. The defense argued he hadn’t been watching where he was going, stepping out too suddenly for the forklift driver to react in time. They also argued that our client knew deliveries were being unloaded and should have exercised more caution on the site.
It was a tricky case for our handling attorneys, Partners Scott Occhiogrosso and Frederick C. Aranki. Their client had acknowledged that he was partially at fault for the accident, but our attorneys were adamant that he was not completely responsible. They themselves visited the Fairway on a delivery day, noting how chaotic and disorganized the process appeared. The obvious lack of safety on site pointed to the fact that, while our client may have some responsibility, the accident was not solely his fault.
The case went to trial, where Occhiogrosso and Aranki presented evidence to show that their client was only 10% at fault for the accident. They hired a liability expert to assess the delivery site, noting the lack of proper safety precautions and clear operational procedures. They also emphasized the lack of a spotter or flagman to direct the forklift driver around the other workers.
Ultimately, the jury agreed with our attorneys’ argument. They placed 90% of the liability onto Fairway, leaving our client only 10% at fault. As a result, he was awarded a total verdict of $3,258,000.
Legal Help for Those Injured by Another Party’s Negligence
The attorneys at Block O’Toole & Murphy are experienced in fighting for victims harmed in negligence cases. With over $2 billion recovered for our clients in New York and New Jersey, we are ready to fight for compensation for your injuries.
Select cases of negligence include:
- $110,174,972.38 verdict for a cyclist who was struck by a falling railroad tie and became paralyzed
- $8,800,000 settlement for a grandmother who suffered a brain injury after being hit by a van
$2,700,000 settlement for 54-year-old woman who tripped on uneven pavement and injured her spine and knee
Call 212-736-5300 to schedule a free consultation or fill out our online contact form. Our firm serves New York and New Jersey.