Comparative Negligence in New Mexico

You can collect damages under New Mexico’s comparative negligence law unless you’re found 100% at fault.
Written by Melanie Johnson
Reviewed by Kathleen Flear
New Mexico
is a pure comparative negligence state, which means you may collect damages from an accident in which you were partially at fault—but not if you were 100% at fault.
As soon as an accident happens, the process of determining fault begins. Comparative negligence comes into play when both or multiple parties in an accident share some percentage of fault. 
Comparative negligence laws vary from state to state, so it’s important to stay informed. We'll guide you through comparative negligence laws in New Mexico: what they are, how they could affect you, and what the insurance claims process for them is like. 

What is comparative negligence?

Comparative negligence is the legal principle that allows for an injured party to collect damages in an accident proportionate to their percentage of fault.
What does this mean? If you are in a collision with another driver and found to be 40% at fault, you may be able to collect 60% of damages from the other driver’s insurance company. You will be expected to pay 40% of the other driver’s damages.
Comparative negligence applies to insurance claims and personal injury lawsuits. For an insurance claim, a claims adjuster will investigate and determine the fault assigned to drivers. In a comparative negligence lawsuit, a judge or a jury will determine each driver’s percentage of fault in an accident. 

Comparative negligence vs. contributory negligence

The three types of comparative negligence that are recognized across the country are pure comparative negligence, partial or modified comparative negligence, and contributory negligence. 
States vary on which type they uphold.
  • Pure comparative negligence: The injured party can collect damages proportionate to their percentage of fault—unless they are 100% at fault.
  • Partial/modified comparative negligence: The injured party can collect damages proportionate to their percentage of fault—unless it is higher than 50 or 51% (depending on the state). 
  • Contributory negligence: The injured party cannot collect damages if they have any percentage of fault. 
Thirty-three states uphold modified comparative negligence, while 12 uphold pure comparative negligence. Only five recognize contributory negligence. 

What is New Mexico’s comparative negligence law? 

New Mexico is one of only 12 pure comparative negligence states in the U.S. Per New Mexico law, you are able to collect damages from an accident even if you are 99% at fault in that accident.
If you are 99% at fault, your insurance will be responsible for paying 99% of the other driver’s injury and damage costs. The other driver’s insurance is responsible for 1% of your injury and damage costs from the accident. 

What happens if there are more than two responsible parties? 

In the event there are more than two responsible parties in an accident, the fault will be split among all responsible parties. It must add up to a total of 100%.

How is fault decided in a comparative negligence case?

Fault is determined by insurance companies after reviewing police reports and talking with the involved parties to piece together what happened at the accident site.
To accurately assign fault, insurance companies will consider:
  • The positioning of the vehicles in the accident
  • The circumstances of the collision
  • Witness testimony, if available
  • Photographic evidence
  • Video surveillance (e.g.,
    red light camera
Should a comparative negligence case go to trial, this information will be used to help the court determine fault.

How does car insurance work with comparative negligence? 

Since New Mexico is a pure comparative negligence state, you may file a claim with another driver’s insurance company even if you were 99% at fault in an accident. You’ll be able to collect damages according to the other driver’s proportion of fault.
In a practical example, let’s say you were
texting while driving
and another car hit you. You saw the car coming but weren’t able to react in time because you were on your phone.
An insurance claims adjuster or court finds the other driver 60% at fault for hitting you and deems you 40% at fault. They argue that had you not been involved in negligent behavior (i.e., texting), you could have taken evasive action to avoid the other driver. 
In this scenario, you would be able to collect 60% of damages to your vehicle from this accident. If the cost to repair your car is $1,500, the other driver would be responsible for paying 60% of that—$900. You would be expected to pay the remaining $600.
was spot on. I’m young with one rear end on my record. Still, they dropped my monthly insurance rate from $468 to $250. This really saved me money.” —Jason M.
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Most likely, yes. Your insurance company may raise your premium after an at-fault accident depending on various factors—like your percentage of fault in the accident, driving history, etc. But you should expect your rate to go up significantly. It may even double.
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