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Whose fault was it? This is likely to be one of the first questions Denver residents hear after a motor vehicle accident. Sometimes, the answer is not in dispute, but other times it could be that both drivers were guilty of some level of negligent behavior.

In these situations, it’s important to understand what the legal field calls contributory and comparative negligence. We’ll be taking a look at these concepts that deal with situations where more than one individual bears some fault for an accident. The information is presented as general background only, and is not intended as specific legal advice.

First, let’s be clear on what contributory negligence means. Say one driver rear-ends another driver at a stoplight and causes the driver in front to suffer from whiplash. Typically, a driver who hits another vehicle from behind will be at fault for the accident. So the driver in front files a lawsuit against the driver who hit him.

But what if it was dark outside and the driver in front did not have the car’s lights on? Or what if he or she was intoxicated and failed to begin driving again when the light turned green? The driver in back could argue that the other driver was also at fault for the accident and injury, in what we call a contributory negligence counterclaim.

There was a time when a successful contributory negligence counterclaim, that is, demonstrating that the injured party also bore some fault, meant that the suit would be tossed out entirely with no damages awarded. Today, courts in Colorado and most other states follow a theory called comparative negligence. We’ll look at just what that means in a follow-up post.