Contributory negligence
Encyclopedia
Contributory negligence in common-law jurisdictions is defense
to a claim based on negligence, an action in tort
. It applies to cases where a plaintiff
/claimant has, through his own negligence, contributed to the harm he suffered. For example, a pedestrian
crosses a road negligently and is hit by a driver who was driving negligently.
Contributory negligence is often regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, may be denied compensation entirely.
Contributory negligence can be compared to comparative negligence
, where the negligence of the plaintiff is not a complete defense of the insured but can reduce the damages.
of a plaintiff or claimant. In others, the burden is on a plaintiff to disprove his 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).
, it is not a defense to the tort of conversion
or trespass to chattels
. In the U.S., it is not a defense to any intentional tort.
, a performance poet in the U.K. The poem criticized a court decision where a rapist escaped heavy punishment
and was ordered to pay only a fine on the ground that the women in some way provoked or contributed to the rape
.
in the 19th and 20th century. The English case Butterfield v. Forrester
is generally recognized as the first appearance, although ironically in this case the judge found the victim to be the sole proximate cause
of the injury.
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
to a claim based on negligence, an action in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
. It applies to cases where a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
/claimant has, through his own negligence, contributed to the harm he suffered. For example, a pedestrian
Pedestrian
A pedestrian is a person traveling on foot, whether walking or running. In some communities, those traveling using roller skates or skateboards are also considered to be pedestrians. In modern times, the term mostly refers to someone walking on a road or footpath, but this was not the case...
crosses a road negligently and is hit by a driver who was driving negligently.
Contributory negligence is often regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, may be denied compensation entirely.
Contributory negligence can be compared to comparative negligence
Comparative negligence
Comparative negligence, or non-absolute contributory negligence outside of the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause...
, where the negligence of the plaintiff is not a complete defense of the insured but can reduce the damages.
Burden of proof
In some jurisdictions, the defendant has to prove the negligenceNegligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
of a plaintiff or claimant. In others, the burden is on a plaintiff to disprove his own negligence. The tortfeasor may still be held liable if he had the last clear chance
Last clear chance
The last clear chance is a doctrine in the law of torts that is employed in contributory negligence jurisdictions. Under this doctrine, a negligent plaintiff can nonetheless recover if he is able to show that the defendant had the last opportunity to avoid the accident...
to prevent the injury (the last clear chance doctrine).
Availability
Contributory negligence is generally a defense to a tort of negligence. The defense is not available if the tortfeasor's conduct amounts to malicious or intentional wrongdoing, rather than to ordinary negligence. In England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, it is not a defense to the tort of conversion
Conversion (law)
Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another. It is a tort of strict liability...
or trespass to chattels
Trespass to chattels
Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel...
. In the U.S., it is not a defense to any intentional tort.
Culture
"Contributory Negligence" was the title of a circa 1982 poem by Attila the StockbrokerAttila the Stockbroker
Attila the Stockbroker is a punk poet, and a folk punk musician and songwriter. He performs solo and as the leader of the band Barnstormer...
, a performance poet in the U.K. The poem criticized a court decision where a rapist escaped heavy punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
and was ordered to pay only a fine on the ground that the women in some way provoked or contributed to the rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
.
History
The doctrine of contributory negligence was dominant in U.S. jurisprudenceJurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
in the 19th and 20th century. The English case Butterfield v. Forrester
Butterfield v. Forrester
Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 , was an English case before the King's Bench that was the first appearance of contributory negligence as a common law defense against negligence.-Facts:...
is generally recognized as the first appearance, although ironically in this case the judge found the victim to be the sole proximate cause
Proximate cause
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the "but-for" test: but for the action, the result...
of the injury.