Contributory Negligence

What is Contributory Negligence?

Contributory negligence is a term used to describe the actions of an injured individual who may have also contributed or caused his/her own injury. For instance, if you are hit by a moped while crossing the street, but you failed to look before crossing, your careless actions will be taken into consideration in a civil court setting. In this situation, your negligence will be reviewed and any compensation that you obtain may be reduced because of your careless actions.

In some civil courts, if you are found to have contributed to your own injury, the underlying state will prevent you from collecting compensation. The majority of states in the U.S. have done away with the practice of contributory negligence and replaced it with “comparative negligence”, which analyzes the degree of fault for each party in deciding whether compensation is justified in the case and what the percentage of payment will be. In comparative negligence, the amount of the plaintiff’s award is reduced by the extent to which the plaintiff’s conduct contributed to the harm suffered.

In common law, a contributory negligence defense is an absolute defense to serve as a complete bar to recovery. Contributory negligence is regarded as a means to recovery only when it is a proximate cause of the harm suffered. If the damage sustained is deemed to have taken place because of an event which could not have been anticipated, the plaintiff’s negligence—in a contributory negligence defense—will be regarded as too remote to act as a bar to secure compensation.

The general concept of contributory negligence is used to characterize actions that create unreasonable risks to one ’s self. The premise revolves around the idea that a person has a duty to act as a prudent or responsible individual. When an individual does not act this way and an injury is sustained, that person may be held partially or entirely responsible for the injury sustained, even though a different person was involved in the accident.

Contributory Negligence and the Standard of Care:

Similar to other forms of negligence defenses, contributory negligence is evaluated based off the “standard of care” provision. The standard of care clause in contributory negligence is the same as traditional or ordinary negligence: that which a reasonable individual would have done under similar circumstances. An act or omission of an injured party which amounts to contributory negligence must be deemed a negligent act or omission and it must act as a proximate cause of the damage or injury sustained. Acts or omissions that simply increase or add to the damage or injury will typically not preclude recovery.

If the plaintiff voluntarily disregards warnings or basic social rules and assumes the risk of associated dangers, but is injured because of the negligence of the defendant from an entirely different source of danger, of which the individual was not and could not have been aware, then the plaintiff’s failure to heed the warning will not constitute contributory negligence. The defense of contributory negligence is typically not available for intentional torts or situations where the defendant is deemed to be guilty of willful misconduct. Contributory negligence may also be unavailable where the defendant violates a statute that is created to protect plaintiff. Contributory negligence is not regarded as a defense for strict liability torts unless a plaintiff has knowingly assumes some level of unreasonable risk.

Contributory Negligence Today:

Only a handful of states utilize contributory negligence law; the majority has transitioned to comparative negligence. As of 2012, only Alabama, Maryland, North Carolina, Virginia and Washington D.C. still employ contributory negligence defenses.

The primary difference between contributory and comparative negligence is that comparative negligence is less severe. Under contributory negligence, any negligence on the part of the plaintiff, even the smallest slice of negligence, is sufficient to constitute a complete defense. Under comparative negligence; however, the extent of the plaintiff’s own negligence will only come into play when determining the amount of compensation.

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