Defenses to Tort Liability: Contributory Negligence

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What Is Contributory Negligence in a Personal Injury Lawsuit?

Contributory negligence is a type of defense to liability where the defendant may argue that a plaintiff contributed in some way to their own injuries or losses. A plaintiff who is found to be “contributory negligent” will be prevented from receiving a damages award. In some of the jurisdictions that offer this defense, it is the defendant who has the burden of proving that the plaintiff was contributorily negligent.

What Is the Difference Between Contributory Negligence and 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. As such, contributory negligence is a minority rule and is only available in the following jurisdictions:  

The rest of the states follow some form of “comparative negligence,” where the plaintiff’s damages are reduced by their percentage of liability. For example, a defendant may be 40% less liable for damages if the plaintiff is 40% at fault 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 the defendant 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, and in a contributory negligence jurisdiction, the plaintiff normally will not be awarded damages for their injury.

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. Here, the defendant is said to have the “last clear chance” to avoid the injury, and so they can still be held liable.

The elements of proof for the last clear chance doctrine are:

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.  

Seeking Legal Help

Lawsuits involving contributory negligence are frequently very complicated, especially if the last clear chance doctrine is also involved. An experienced personal injury lawyer can assist you 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 in the event of a trial.

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Last Modified: 07-30-2015 11:14 AM PDT

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