What is contributory negligence? Definition & examples
Typically, a claimant will have a case against a defendant if they can prove that the defendant is responsible for their injuries. In most cases, the defendant will not readily assume responsibility, especially if an insurance company is involved.
The defendant will try to build a defense to get off the hook or lower the claim’s value. One of the most popular defense strategies employed by defendants is claiming that the claimant was partly to blame for the accident, thereby weakening or destroying their case.
The level of damages such a defense causes to a claim depends on the state’s application of negligence, with some states following a contributory negligence approach while others have a comparative approach. This article focuses on contributory negligence and what it means to a claim.
What is contributory negligence?
Contributory negligence is the strictest approach to negligence and denies the claimant a right to compensation if they had any role in causing the accident.
For example, suppose a drunk driver hits a pedestrian who is jaywalking. It would be true to say that the driver did not exercise reasonable care on the road because of their drunk driving. However, it is also right to say that the pedestrian was not exercising reasonable care for crossing the road at an undesignated area.
Under a contributory negligence approach, both parties are held equally responsible for an accident meaning the pedestrian cannot recover compensation from the driver.
How it compares to comparative negligence
Due to the strict nature of contributory negligence, most states have adopted a less punitive approach to negligence. The only states still following the contributory negligence approach are North Carolina, Alabama, Maryland, Virginia and DC.
Other states have a comparative approach to negligence, allowing the claimant to recover compensation relative to their contribution to the accident. Comparative negligence rules vary with the state; some follow a pure comparative fault approach, while others follow a modified comparative fault.
Under pure comparative negligence, a claimant can pursue a claim even when the defendant was only one percent at fault in an accident. However, they will only qualify for one percent of the settlement value.
Under modified comparative negligence, the victim can only pursue a claim if they are less to blame for the accident than the defendant, with some states requiring that the defendant be at least 50 percent at fault while others require 51 percent for the victim to qualify for compensation.
To illustrate, if a victim is 30 percent at fault, they can only recover 70 percent of the claim’s value. If they are 55 percent at fault, they cannot recover compensation.
Elements of contributory negligence
“Typically, a victim must prove the defendant’s negligence to recover compensation. On the other hand, the defendant must prove contributory negligence on the victim’s part,” says attorney Russell Berkowitz.
They must demonstrate that the victim had a duty to act to avoid harm, they failed to act reasonably, and that their actions or inaction were partly a cause of the accident.
In some situations, the plaintiff can still recover compensation in contributory states even when they are partially at fault. For example, if the defendant had the last clear chance of preventing the accident, they could have avoided the accident through reasonable means and failed to avoid it.
This exemption is known as the last chance rule. The chances of losing a claim when the defendant claims contributory negligence can be quite high, so it is always important to work with a lawyer.
