Contributory Negligence in the Southeast

Contributory negligence” is negligent conduct on the part of the plaintiff/injured party contributes to the negligence of the defendant in causing the injury or damage.  This definition is fairly uniform in all states.  While the term “contributory negligence” is understood in Alabama, South Carolina, Mississippi, and Tennessee, the legal concept is treated quite differently in the Harper Little geographic territories.


Alabama recognizes Pure Contributory Negligence.  This is a drastic concept which says that claimant cannot recover any damages if he or she is even 1% at fault. The pure contributory negligence defense has been criticized for being too harsh on the plaintiff, because even the slightest amount of contributory negligence by the plaintiff which contributes to an accident bars all recovery.

If plaintiff is making claim based in negligence, entitlement to receive damages will be defeated by plaintiff’s negligence. John Cowley & Bros., Inc. v. Brown, 569 So.2d 375 (Ala. 1990); Ala. Power Co. v. Schotz, 215 So.2d 447 (Ala. 1968).”


Mississippi is a “comparative fault” state.  The term “comparative fault” refers to a system of apportioning damages between negligent parties based on their proportionate shares of fault. Under a comparative fault system, a plaintiff’s negligence will not completely bar recovery like states that employ the harsh Pure Contributory Negligence Rule, but it will reduce the amount of damages the plaintiff can recover based on the plaintiff’s percentage of fault. The Pure Comparative Fault Rule allows a damaged party to recover even if it is 99% at fault, although the recovery is reduced by the damaged party’s degree of fault. The pure comparative fault system has been criticized for allowing a plaintiff who is primarily at fault to recover from a lesser-at- fault defendant some portion of its damages. Twelve (12) states, including Mississippi, recognize the Pure Comparative Fault Rule.

Mississippi tort law allows for determination of percentage of fault in civil cases. See Ghane v. Mid-South Inst. of Self Def. Shooting, Inc., 137 So. 3d 212, 220, 2014 Miss. LEXIS 32, *20, 2014 WL 172133. Mississippi is proud of its history in applying the doctrine. In 2018, the Supreme Court stated that “contributory negligence…….no longer a complete bar for recovery. See Miss. Code Ann. § 11-7-15 (Rev. 2004). “Comparative negligence represents a long-established, salutary and worthwhile policy of this State.” Mitchell, 211 So. 2d at 513. See Smith v. Church Mut. Ins. Co., 254 So. 3d 57, 68, 2018 Miss. LEXIS 327, *23, 2018 WL 3661529

South Carolina

South Carolina follows a practice known as “Modified Comparative Fault.”  In South Carolina, it is sometimes referenced as the 51% rule as a claimant may not recover if he or she is deemed to be more than fifty percent (50%) at fault.  If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s negligence cannot exceed that of the defendant(s). Ross v. Paddy, 340 S.C. 428, 532 S.E.2d 612 (Ct. App. 2000)

Under Modified Comparative Fault System, each party is held responsible for damages in proportion to their own percentage of fault, unless the plaintiff’s negligence reaches a certain designated percentage.


Like South Carolina, Tennessee follows the “Modified Comparative Fault” doctrine.    There is another twist, however, in that Tennessee does not allow recovery for a party that is found to be fifty percent at fault. See McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Precedent holds that a damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s right to damages may be reduced by his own liability, but he will not be barred from recovering. McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)

Our lawyers are well tested in applying each of the four variations on comparative fault and contributory negligence. Harper Little’s insurance defense practice thrives on superior knowledge with regard to the jurisdictions within which we work.


Published by C. Clay Olson

Attorney Christopher Clay Olson is a partner at Harper Little PLLC where he focuses on representing clients in the construction, insurance, banking, hospitality, retail, and real estate industries. Mr. Olson is currently enjoying his seventeenth year as a practicing lawyer in South Carolina. Located in Charleston, Clay is a partner with Harper Little. Mr. Olson focuses his practice on commercial litigation, with an emphasis on the construction industry. Over the years he has litigated construction defect suits, payment disputes, including mechanics lien obligations, surety bond claims as well as insurance coverage litigation involving local, regional, as well as nationally emerging builders and developers. During the years 2008 and 2009, Clay proudly served as South Carolina’s co-chair for the Council on Litigation Management, an organization comprised of insurance companies, self-insured corporations, attorneys, and governmental agencies all striving towards the common goal of cost-efficient dispute resolution. Membership in the Council is achieved by invitation only. Mr. Olson has litigated matters in State and Federal Courts, as well as within various alternative dispute resolution bodies such as the American Arbitration Association. Education Mr. Olson was born in Anderson, South Carolina in 1974. He received his B.A. in Government from Wofford College in 1996, and his J.D. from the University of South Carolina School of Law in 1999. Admissions Mr. Olson is admitted to the State Bar of South Carolina, and the U.S. District Court for the State of South Carolina. Classes/Seminars Taught · Lecturer, Litigation Management Basics (2009) – Argo Specialty Lines and The Colony Group (Richmond, VA) · Lecturer, Evaluation Damages (2009) – Seibels Bruce and Subsidiaries (Columbia, SC) Lecturer, Additional Insured Provisions, Limitations of Liability, and Related Contractual Provisions in Design Contracts (2011) – Arrowpoint Capital (Charlotte, NC) Legal Affiliations Mr. Olson is a member of the State Bar of South Carolina (Member, Construction Law Section). Mr. Olson is also a member of the Council on Litigation Management (CLM). Industry Affiliations Mr. Olson is rated as Distinguished by Martindale Hubbell. He is a member of the South Carolina Bar's Construction Focus and the ABA Forum on the Construction Industry.

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