The Facts About Contributory Negligence

Although in personal injury law contributory negligence is considered a countersuit, it's actually more of a defense. Individuals who are sued for negligence can sue the plaintiff as at least partially at fault for the injury. If the jury or judge finds the plaintiff to have contributed even 1 percent to the negligence, he receives no damages from the defendant. Only five states currently use the pure contributory negligence doctrine. Most opt for comparative or modified comparative negligence.

Origins of Contributory Negligence

The United States used the doctrine extensively in the 19th and 20th centuries. However, contributory negligence, like so much American law, has its roots in England. In the first known case, Butterfield vs. Forrester, Butterfield put up a pole in order to repair his home. Forrester, who was riding a horse, hit the pole. He sued Butterfield for personal injury damages. Although it was dusk, a witness said the visibility was 100 yards, so the court ruled that Forrester failed to use common caution and denied him damages.

The Burden of Proof Shifts

The burden of proof differs from state to state. Some adhere to the rule that the defendant must prove the plaintiff is partially negligent in causing his own injury. However, in some jurisdictions, the injured person must prove he did not act negligently. Along with that, the 'last clear chance' clause indicates the plaintiff must prove he had a clear chance to prevent injury. Otherwise, he's guilty of contributory negligence. Many people get quite a surprise about this little known law.

'Last Clear Chance' Doctrine

Because of the countersuit, the plaintiff in the original negligence suit is now the defendant. As such, he must prove that immediately before the incident took place, he took a last clear chance to avoid injury. The defendant must show that he couldn't realize there was a last chance or act on it. The last clear chance doctrine was meant, for instance, to avoid the times people might jump in front of cars expressly to get injured and claim damages as a result. There are times, also, when there's no clear last chance.

Objections to Contributory Negligence

Many citizens, attorneys, and lawmakers believe this doctrine completely exonerates the uninjured person and furthermore punishes the injured person. Even though the plaintiff, the original injured party, is found to have caused only 1 percent negligence does not excuse the defendant's actions and the damage he caused. Interested parties also object to the doctrine because it's outdated and, therefore, useless in today's society. Opponents claim injustice, citing cases in England in which rapists were set free by using the contributory negligence doctrine. As the law is used in the United States, if the victim sued the rapist for damages in civil court, the rapist can claim the victim is partially to blame. The criminal case is not affected.

There are only four states, Alabama, Virginia, North Carolina, and Maryland; and the District of Columbia that still use the original law concerning contributory negligence cases. The remaining states have opted for a newer approach, which distributes blame for negligence more fairly. With the advancement of technology, such as vehicles, computers and other devices, situations have become blurred, so the courts devised a system to determine percentage of negligence.