Defenses to Tort Liability: Contributory Negligence
What Is ?Contributory Negligence? in a Personal Injury Lawsuit?
Contributory Negligence is a type of defense to liability in a negligence lawsuit. The defendant may raise this defense if the plaintiff had contributed in some way to their own injuries or losses. A plaintiff who is found to be “contributorily negligent” will be prevented from receiving a damages award.
In the jurisdictions that allow contributory negligence, a plaintiff cannot recover damages if they were liable to any degree for their own injury. Along with comparative negligence and assumption of risk, contributory negligence is one of the more common defenses in a personal injury claim.
In some jurisdictions, it is the defendant who has the burden of proving that the plaintiff was contributorily negligent.
What’s the Difference Between Contributory Negligence Versus Comparative Negligence?
Contributory negligence is considered to be a very strict legal doctrine, since it completely bars the plaintiff from recovering, even if they are only 1% negligent. Only five states (AL, MD, NC, VA, and Washington D.C.) apply the contributory negligence defense.
The rest of the states follow some form of “comparative negligence”, wherein the plaintiff’s damages are reduced by their percentage of liability (for example, 40% less damages if the plaintiff is 40% liable for their own injury).
What is the “Last Clear Chance Doctrine”?
The “Last Clear Chance” Doctrine states that the defendant may still be liable for the plaintiff’s injuries, if they had the “last chance” to avoid the injury (even if the plaintiff was partly liable).
For example, suppose that the plaintiff ran a red light and was injured by the defendant. Here, the plaintiff was partly liable for their own injury because they negligently ran the red light. In a contributory negligence jurisdiction, the plaintiff normally cannot obtain a damages award for their injury since they were partly liable.
However, if the defendant still had time to avoid the plaintiff’s car, but failed to do so, they could still be held liable for the plaintiff’s injury. The defendant is said to have the “last clear chance” to avoid the injury, and so they can still be held liable. This is an example of the “Last Clear Chance” doctrine that is applied in some states.
The elements of proof for the last clear chance doctrine are:
- The plaintiff placed themselves in a situation of risk or danger through their own negligence;
- The plaintiff could not avoid the danger;
- The defendant recognized the danger and thus acquired a duty to avoid it;
- The defendant failed to avoid the danger;
- The plaintiff was injured as a result of the defendant’s failure
The Last Clear Chance doctrine is sometimes referred to as a “defense to a defense”. What typically happens is that the plaintiff files a lawsuit for their injuries, and then the defendant raises a contributory negligence defense. In response, the plaintiff raises the Last Clear Chance theory, ultimately placing liability for the accident upon the defendant.
How Can a Lawyer Help With a Contributory Negligence Defense?
Lawsuits involving contributory negligence can sometimes get complicated, especially if the last clear chance doctrine is also involved. A qualified personal injury lawyer can assist by providing legal advice according to the laws of the state you are in. Your attorney can explain your options for recovery to you, and can represent you during trial when the evidence is being reviewed.
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Last Modified: 12-04-2013 03:13 PM PST
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