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Date Modified: September 9, 2023
In a nutshell, Contributory Negligence is the concept that a Plaintiff who is negligent and whose Negligence contributes proximately to his injuries is barred from recovery. This concept is “all or nothing,” meaning that if a Plaintiff is 1% negligent—they cannot recover anything. This doctrine Encourages forum shopping.
Some jurisdictions embrace the Last Clear Chance limit on this defense. This is the concept that if Δ had an opportunity to prevent the harm just before the accident and Π did not have such an opportunity—Δ becomes liable. For example, Π crossed the street without looking.
Video Transcript - What Is ‘Contributory Negligence’ in a Civil Claim?
"0:00 What is contributory negligence in the
0:02 civil claim? Contributory negligence is a
0:05 theory of law that is different in all
0:08 of the states. Contributory negligence in
0:11 some states says that if the plaintiff
0:14 is contributorily negligent to his own
0:18 damages by even one percent, he cannot
0:21 sue unless the defendant had the last
0:27 clear chance to avoid causing the injury.
0:30 However the majority of jurisdictions such
0:33 as California say that the person who is
0:37 contributorily negligent in causing his own harm,
0:41 he can still recover from the tortfeasor
0:45 for that degree of harm, in which the
0:47 tortfeasor was negligent. This is also
0:50 known as pure comparative negligence
0:52 under California law. So if the plaintiff
0:56 in California was thirty percent
0:59 negligent and the jury awarded a damages
1:02 award of $100,000 against the defendant,
1:05 the defendant would only have to pay
1:08 seventy thousand dollars, because the
1:12 plaintiff was thirty percent at fault. [Music]"
Δ saw Π and tried to avoid hitting him but stepped on the gas instead of the brakes. D’s discovery of the danger gave him a last clear chance to avoid the accident, which he failed to take advantage of. This last clear chance wipes out the effect of Π’s contributory Negligence—Π can recover against Δ. Let’s learn more.
In some cases, the plaintiff won’t be able to care for their own injuries or exercise reasonable care for their safety. This is a huge issue that needs to be discussed with their tort lawyer during the defense process.
The lawyer’s job is to prove negligence to the other party, so their client can be compensated for their personal injury case. In general, there are two approaches to this problem. They can opt for a contributory negligence defense or a comparative negligence defense.
Contributory negligence reduces the amount of money the plaintiff will get if they’re partly at fault for the accident. However, these cases must be thoroughly examined to understand which defense best suits the plaintiff. Keep reading if you want to learn how to figure that out and how this defense can help your case.
What Is Contributory Negligence in Tort Law?
The first thing that must be done in any personal injury case is to determine fault, which can become a bit of a hassle if you’re dealing with an insurance company. These companies will try to get away with paying as little as possible, which may not be enough to cover the damages caused by accidents. Therefore, they will investigate and try to find out whether the victim shared fault with the defendant, as this can lower the amount of money they pay at the end of the case.
This is how these businesses work. Although accidents can sometimes be devastating, all we can do is try our best to build a solid defense to prevent the injured party from paying anything out-of-pocket or receiving less money than they should. That’s why the attorney must thoroughly investigate all tort claims to discover the plaintiff’s part of the blame and create a case around the facts they found.
In most cases, you can quickly tell when to use contributory negligence rules. If a terrible and unforeseen event injures the plaintiff, the chances are that they will get full compensation. However, suppose they were aware of the danger and decided not to do anything about it. In that case, they may have to create a contributory negligence case to prevent the court from taking away their compensation rights. This is the most important contributory negligence rule.
State Laws – Contributory Negligence States
It is also crucial to remember that not all states allow contributory negligence. Therefore, you and your personal injury lawyer must investigate your local rules and determine whether this is a viable option. Suppose you’re not in a contributory negligence state. In that case, the court may deny payment altogether if the victim is at fault for the accident or didn’t do what is expected for a reasonable person to do in a similar scenario.
What Is Comparative Negligence?
Comparative fault or negligence is commonly used as a defense strategy in personal injury claims. It is used to share the blame between parties if they were both responsible for the accident. In some cases, if they both break the same laws, their claims may be denied altogether.
This defense is commonly used in car accidents. Once the personal injury claim is filed, both parties will try to blame the other party for the accident, and if they both share fault, they will need to discuss this in court to determine how much each party will have to pay.
The plaintiff’s compensation will be determined based on “the degrees of determined negligence.” These rules explain how the less responsible party will be charged with contributory negligence and will only receive a percentage of the money they asked for in their claim due to civil liability.
Pure Comparative Negligence
This extreme comparative negligence case allows the plaintiff to obtain compensation even if they’re 99% at fault for the accident, which means they will get 1% of the money they requested in their claim. Pure comparative negligence is rare but still happens in some personal injury cases and is allowed in 13 states across the country.
In these cases, the plaintiff’s recovery is the most important thing. That’s why they will be recovering damages no matter what, and they’re apart from taking the blame for the accident.
Contributory Negligence vs. Comparative Negligence
Many people confuse these terms, so let’s review them again to understand their differences. On the one hand, comparative negligence will assign blame to one of the two parties. If the plaintiff can prove that the defendant owed them a duty of care, they will be awarded a percentage of the money they asked for in the claim, depending on how much fault they share for the plaintiff’s injury.
However, contributory negligence will reduce the compensation instead of assigning blame to both parties. That’s why most American states have adopted comparative negligence rules for all tort cases, such as wrongful death and medical malpractice cases.
Other Types of Comparative Negligence
Although we already went through the most critical aspects of the subject, it is still crucial for you to know the other two types of comparative negligence and how they are used for recovering damages.
Modified Comparative Negligence
Modified comparative fault eliminates the plaintiff’s right to be compensated if they were assigned more than a certain percentage of fault. In most cases, this happens when they get more than 51% of the blame for their accident. Still, other states use the 50% rule for modified comparative negligence.
This rule is only used in South Dakota and consists of eliminating percentages and changing them for the terms “slight” and “gross.” In these cases, each of the parties will be assigned one term. Gross negligence means the plaintiff’s negligence was much larger than the other party’s fault and usually includes reckless behavior.
On the other hand, slight negligence means their fault was less than the other party, and they will be charged a lesser amount.
Contact Ehline Law Firm Today
Contributory negligence can be a bit complicated to understand, but it can also be a relief for some plaintiffs who were injured and were partially responsible for the accident. In contributory negligence cases, the lawyer will ensure their client gets charged with as little blame as possible at the civil court.
Therefore, if you want to file a personal injury claim but don’t know where to start, please go ahead and give us a call so our team of fantastic tort lawyers can get started with your case today. All you have to do is call (833-LETS-SUE).
Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients.
We pride ourselves on being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride and a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.