Contributory Negligence

Tort law
Part of the common law series
Negligence
Duty of care  · Standard of care
Proximate cause  · Res ipsa loquitur
Calculus of negligence  · Eggshell skull
Negligent emotional distress
Rescue doctrine  · Duty to rescue
Statutory Torts
Product liability  · Ultrahazardous activity
Trespassers  · Licensees  · Invitees
Attractive nuisance
Property torts
Trespass  · Conversion
Detinue  · Replevin  · Trover
Nuisance
Public nuisance  · Rylands v. Fletcher
Intentional torts
Assault  · Battery  · False imprisonment
Intentional emotional distress
Consent  · Necessity  · Self defense
Dignitary torts
Defamation  · Invasion of privacy
Breach of confidence  · Abuse of process
Malicious prosecution
Economic torts
Fraud  · Tortious interference
Conspiracy  · Restraint of trade
Liability, Defenses, Remedies
Comparative and Contributory negligence
Last clear chance
Vicarious liability  · Volenti non fit injuria
Ex turpi causa non oritur actio
Damages  · Injunction
Common law
Contract law  · Property law
Wills and trusts
Criminal law  · Evidence

Contributory negligence is a common law defense to a claim based on negligence, an action in tort. It applies to cases where plaintiffs have, through their own negligence, contributed to cause the damages they incurred as a result of defendants' negligence. For example, a pedestrian crosses a road carelessly and is hit by a driver who is also driving carelessly. Contributory negligence is distinguishable from contribution, which is a claim brought by one or more defendants seeking to have a third party pay some or all of any money damages awarded to a plaintiff.

Scope of the Defense

At common law, contributory negligence was originally an absolute defense. If a defendant successfully raised the defense, he would be able to avoid liability for the tort completely. This could lead to injustice where the negligence of a plaintiff or claimant was slight. The defense of contributory negligence would prevent them from recovering any damages at all.

Most jurisdictions in the United States have modified the doctrine, either by court decision or by legislation and have accordingly changed the name to comparative negligence wherein, rather than awarding no damages at all, the jury reduces the compensation to be awarded by a percentage reflecting the degree to which the plaintiff's negligence contributed to cause the damages. Maryland, Alabama, North Carolina, Virginia, and the District of Columbia retain contributory negligence as a complete defense to negligence. In England and Wales, the Law Reform (Contributory Negligence) Act 1945 had a similar effect (the similar, current doctine being termed Acts of the claimant).

Burden of proof

In some jurisdictions the defendant has to prove the negligence of the plaintiff or claimant; in others the burden is on the plaintiff or claimant to disprove their own negligence. The tortfeasor may still be held liable if he had the last clear chance to prevent the injury (the last clear chance doctrine).

Applicability

Contributory negligence is generally a defence to tort claims arising out of negligence of the defendant. In contrast, where the defendant's conduct amounts to malicious or intentional wrongdoing as opposed to ordinary negligence the defence does not apply. In England and Wales it is not a defence to the torts of conversion or trespass to goods and in the US it is not a defense to any intentional tort.

Culture

"Contributory Negligence" was the title and subject of a circa 1982 poem by Attila the Stockbroker, a UK performance poet, protesting at the mere fine given to a rapist after the high court judge determined that the women concerned in some way provoked or contributed to the rape.

See also

• Damages

External links

• Worldlii links to resources on the subject of damages

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