Contributory negligence is negligent conduct by the injured party that is a contributing cause of her injuries, and that falls below the legal standard for protecting oneself from an unreasonable risk of harm.
At common law, the defense of contributory negligence was an absolute defense and served as a complete bar to recovery. Most jurisdictions today have adopted the doctrine of comparative negligence, whereby the amount of the plaintiff’s award is reduced by the extent to which plaintiff’s conduct contributed to the harm.
Contributory negligence is a bar to recovery only when it is a proximate cause of the injury. If the damage is not the necessary or ordinary or likely result of contributory negligence, but is due to some other unlikely event which could not reasonably have been anticipated or regarded as likely to occur, the plaintiff’s negligence is too remote to act as a bar to recovery.
Standard of Care
The standard of care in contributory negligence is the same as in ordinary negligence; i.e., that which a reasonable person would have done under the same or similar circumstances. The act or omission of an injured party which amounts to contributory negligence must be a negligent act or omission, and it must serve as a proximate cause of the injury and not merely as a condition. An act or omission that merely increases or adds to the extent of the loss or injury will generally not preclude recovery. It may however reduce the amount of damages.
If a plaintiff voluntarily disregards warnings and assumes the risk of certain dangers, but is injured through the negligence of the defendant from an entirely different source of danger, of which she was not and could not have been aware, and of whose existence it was the duty of the defendant to warn, then the plaintiff’s failure to heed the warning does not constitute contributory negligence.
The defense of contributory negligence generally is not available for intentional torts or where the defendant is found to be guilty of wanton and willful misconduct. It can also be unavailable where the defendant has violated a statute clearly designed for the protection of the plaintiff. Contributory negligence is not a defense for strict liability torts unless the plaintiff has knowingly assumed an unreasonable risk.
The majority rule is that if a person is injured while attempting to rescue another person or property from danger, the rescuer is not contributorily negligent unless the conduct is reckless.
Alexander v. Kramer Bros. Freight Lines, Inc. – Alexander sued Kramer Brothers after he suffered personal injuries in an accident with the defendant’s truck and Kramer Brothers asserted contributory negligence as a defense. The court held that the plaintiff has the burden of proof to show that he or she was not contributorily negligent.
Baltimore & Ohio R. Co. v. Goodman – Goodman was struck and killed by a train while driving over a railroad crossing. His view was obstructed and he did not get out to look for an approaching train. The court ordered a directed verdict that Goodman was contributorily negligent on the grounds that no reasonable jury could have found in favor of the plaintiff under the facts of the case.
Brown v. Kendall – Kendall injured Brown while trying to separate their dogs and stop them from fighting. Brown was standing behind Kendall and he was struck in the eye with a stick. The court held that the injured party cannot recover if both parties were not negligent, or if both parties were negligent, or if the injured party was negligent but the defendant was not.
Butterfield v. Forrester – Forrester laid a pole across a road. Butterfield was riding at high speed at twilight and did not see the pole. He hit the pole and suffered personal injuries. The court held that Butterfield was contributorily negligent because if he had been using ordinary care he would have been able to see and avoid the obstruction.
Eckert v. Long Island R. R. Co. – Eckert saw a boy sitting on railroad tracks. He succeeded in saving the boy but was struck and killed by the train. The court held that when a rescuer attempts to save someone in imminent peril, he may assume extraordinary risks or perform dangerous acts without being contributorily negligent.
Martin v. Herzog – Martin was killed in an accident while driving a buggy without lights at night. The defendant was driving on the wrong side of the road. The court held that the violation of a statutory duty of care is negligence per se and a jury may not relax that duty. In order for a party to be liable for negligent conduct, the conduct must be the cause of the injury.
Roberts v. Ring – Ring was 77 years old and had impaired hearing and vision. While driving on a busy street he saw a seven year old boy run into his path but failed to stop in time to avoid hitting him. The court held that while the defendant cannot take advantage of impairments and infirmities to avoid a finding of negligence, the injured party is held to a standard that takes age and maturity into account.
Smithwick v. Hall & Upson Co. – Smithwick was told not to work on a platform but was not told that the wall was about to collapse. He worked on platform despite the warning because he believed the risk of falling was the only danger. The court held that the failure to heed a warning is not contributory negligence if the injury was the result of a different source of risk caused by the defendant, and the injured party was unaware of that risk.
Solomon v. Shuell – Plain clothes police officers were arresting robbery suspects. The decedent thought the suspects were being attacked and was shot by one of the officers when he came out of his house with a gun. The court held that under the rescue doctrine, contributory negligence is not present if the rescuer had a reasonable belief that the victim was in actual danger.