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.

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