What is meant by contributory negligence? Discuss the doctrine briefly and state the exception if any.

Introduction:

Accidents take place every day, people are injured and property is damaged. When accidents happen, one of the first questions people characteristically ask is “Who was at liability in the accident?” Contributory negligence law talks this query and provides a way to assign burden between parties when the answer to this query is not entirely clear. For example, Rahim, a motorist, strikes Karim, a pedestrian who was going through the street without prudently inspecting traffic or heeding the warning of the do-not-cross sign of the nearby streetlamp. Who is at fault in this state? This complex condition begins when the injured party declares a negligence claim against the offender. The respondent (the person sued) may then assert a contributory negligence claim against the complainant (the person bringing the lawsuit), in effect stating that the injury ensued, completely or in part, as a result of the plaintiff’s own actions.[1] If the offender is able to prove the contributory negligence claim, the claimant may be totally barred from recovering damages or her damages may be reduced to reflect her role in the ensuing injury. As one might imagine, claims addressing this “fault” dispute can become very complicated. An attorney, experienced in dealing with negligence and contributory negligence, can help sort through the problem and will work for a fair settlement that reflects both parties’ responsibility for the injury.[2]

Negligence:
Negligence is a term used to characterize conduct that creates an unreasonable risk of harm to others. In order to prevail on a negligence claim, the party will have to prove several things.[3] First, the person claiming injuries will have to show that the defendant had a duty to act in a certain manner towards the injured person. The general rule is that an individual has a duty towards all persons, at all times, to exercise reasonable care for the person’s physical safety and property.[4] For example, Rahim has a duty to Karim to operate his car in a reasonable manner and to be mindful of her safety, even though there is no special relationship between Rahim and Karim.

Next, a successful plaintiff must prove that the defendant failed to act in a reasonable manner.[5] Using the previous example, if Rahim operates his car in an unreasonable manner, it is said that he has “breached” his duty of care toward Karim. Thus, Rahim has been negligent. The determining factor as to whether conduct is reasonable is based on whether a prudent person could foresee that certain conduct would pose a risk to others. For example, a prudent person could foresee that driving 90 miles per hour in a 30 mile per hour zone would pose a risk to others and would easily be characterized as unreasonable behavior.

Lastly, the plaintiff must show that he or she suffered actual damages or loss as a result of the unreasonable behavior.[6] If Rahim drives 90 miles per hour down the street he may be in violation of speeding laws but Karim does not have a claim against Rahim until she is injured as a result of Rahim’s unreasonable driving. However, in the opening example, Karim carelessly walked out into the street before Rahim struck her. In this case, Rahim is likely to assert contributory negligence as a defense against his liability for Karim’s injuries.

Contributory Negligence :

Contributory negligence is negligent conduct by the injured party that is a contributing cause of her injuries, and that falls below the legal standard for protecting oneself from an unreasonable risk of harm.[7] At common law, the defense of contributory negligence was an absolute defense and served as a complete bar to recovery. Most jurisdictions today have adopted the doctrine of comparative negligence, whereby the amount of the plaintiff’s award is reduced by the extent to which plaintiff’s conduct contributed to the harm. Contributory negligence is a bar to recovery only when it is a proximate cause of the injury. If the damage is not the necessary or ordinary or likely result of contributory negligence, but is due to some other unlikely event which could not reasonably have been anticipated or regarded as likely to occur, the plaintiff’s negligence is too remote to act as a bar to recovery.[8]The doctrine of contributory negligence is, that one cannot recover compensation for an injury from any negligence, into which negligence of his own has to a greater or less degree entered cause, contributing as a proximate to the complained result.[9] Negligence, to be actionable, must be the proximate cause of the injury, and similarly contributory negligence, in order to be a defense must also be a proximate cause of the injury sued on. The application of the doctrine of contributory negligence is well set out in the decision in the case of The Bernina.

The Facts About Contributory Negligence:

Although in personal injury law contributory negligence is considered a countersuit, it’s actually more of a defense. Individuals who are sued for negligence can sue the plaintiff as at least partially at fault for the injury. If the jury or judge finds the plaintiff to have contributed even 1 percent to the negligence, he receives no damages from the defendant. Only five states currently use the pure contributory negligence doctrine. Most opt for comparative or modified comparative negligence.[10]

Origins of Contributory Negligence:

The United States used the doctrine extensively in the 19th and 20th centuries. However, contributory negligence, like so much American law, has its roots in England. In the first known case, Butterfield vs. Forrester, Butterfield put up a pole in order to repair his home. Forrester, who was riding a horse, hit the pole. He sued Butterfield for personal injury damages. Although it was dusk, a witness said the visibility was 100 yards, so the court ruled that Forrester failed to use common caution and denied him damages.[11]

The Burden of Proof Shifts:

The burden of proof differs from state to state. Some adhere to the rule that the defendant must prove the plaintiff is partially negligent in causing his own injury. However, in some jurisdictions, the injured person must prove he did not act negligently. [12]Along with that, the ‘last clear chance’ clause indicates the plaintiff must prove he had a clear chance to prevent injury. Otherwise, he’s guilty of contributory negligence. Many people get quite a surprise about this little known law.

Last Clear Chance’ Doctrine:

Because of the countersuit, the plaintiff in the original negligence suit is now the defendant. As such, he must prove that immediately before the incident took place, he took a last clear chance to avoid injury. The defendant must show that he couldn’t realize there was a last chance or act on it. The last clear chance doctrine was meant, for instance, to avoid the times people might jump in front of cars expressly to get injured and claim damages as a result. There are times, also, when there’s no clear last chance. [13]

Objections to Contributory Negligence:

Many citizens, attorneys, and lawmakers believe this doctrine completely exonerates the uninjured person and furthermore punishes the injured person. Even though the plaintiff, the original injured party, is found to have caused only 1 percent negligence does not excuse the defendant’s actions and the damage he caused. Interested parties also object to the doctrine because it’s outdated and, therefore, useless in today’s society. Opponents claim injustice, citing cases in England in which rapists were set free by using the contributory negligence doctrine. As the law is used in the United States, if the victim sued the rapist for damages in civil court, the rapist can claim the victim is partially to blame.[14] The criminal case is not affected. There are only four states, Alabama, Virginia, North Carolina, and Maryland; and the District of Columbia that still use the original law concerning contributory negligence cases. The remaining states have opted for a newer approach, which distributes blame for negligence more fairly. With the advancement of technology, such as vehicles, computers and other devices, situations have become blurred, so the courts devised a system to determine percentage of negligence.[15]

The Contributory Negligence Rule Created Potential Inequities:

The common law contributory negligence rule foreclosed recovery by any plaintiff who was the slightest bit negligent. The rule thus could potentially bar a slightly negligent plaintiff from recovery against a greatly negligent defendant. To address such inequities, courts fashioned exceptions to the rule, such as the audit interference doctrine.[16]

Conclusion:

Contributory negligence is an important legal doctrine for both plaintiffs and defendants. An individual who has been injured by negligent conduct may be reluctant to bring a negligence claim given the fact that they were partly at fault for their injury. On the other side of that coin, when the victim has been partly responsible for his or her own injuries, a defendant may not be required to fully compensate that person for all of his or her injuries.[17] This is when the defendant (the person or company responsible for the accident) accepts that they are responsible for an accident, but alleges that the claimant (the person injured – the people we fight for!) was partly to blame for the accident or for their injuries. Usually it is made through their insurers or solicitors.[18]

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