Contributory Negligence / Comparative Negligence (Mitverschulden)

Concept

Contributory or comparative negligence describes the legal doctrine under which a claimant’s damages award is reduced in proportion to the extent that the claimant’s own negligence contributed to the cause or extent of the loss. Rather than necessarily barring the claim entirely, the award is reduced according to the relative degree of fault of the tortfeasor and the claimant.

Comparative Legal Approaches

Different models for handling contributory fault have developed internationally. The model of proportional loss-sharing prevailing in German-speaking jurisdictions (“comparative negligence”) provides for a proportional reduction of the claim according to the respective degree of fault, whereas the historical Anglo-American common-law doctrine of “contributory negligence” originally barred any recovery entirely upon even the slightest degree of fault on the part of the claimant – a model that most US states have since abandoned in favor of proportional comparative fault.

Relevance to Liability Insurance

The treatment of contributory fault is of central importance to claims handling in liability insurance, as it directly affects the amount of indemnity payable by the tortfeasor’s liability insurer; the correct determination and apportionment of the respective degrees of fault is frequently the subject of extensive evidentiary proceedings and litigation.