Contributory Negligence and How it Applies to Personal Injury Law

In most personal injury claims, the lawsuit centers on some form of negligence: gross, comparative, vicarious or contributory negligence.

At its core, negligence refers to the failure to perform one’s duty of care in that circumstance, resulting in harm. A reasonable person would act differently to preserve the safety of themselves and others.

But what happens if the injured party was partially responsible, even in the tiniest way? Well, then the ability to recover damages in a personal injury case depends on where they live. In the few states that still follow contributory negligence laws, receiving any compensation is a challenge.

Read on to learn more about this “defendant-leaning” form of negligence. It’s still possible to win a personal injury case in contributory negligence states, but you’ll definitely need the right lawyer.

What is Contributory Negligence?

Contributory negligence is one of the four main types of negligence that may show up in personal injury cases.

In any case involving negligence, plaintiffs must establish three aspects of duty of care:

• The defendant owed the plaintiff a duty of care
• The defendant failed to fulfill that duty
• That failure resulted in the harm to the plaintiff and others
• The damages are verifiable and measurable (like medical records or repair bills)

However, even if it seems someone is guilty of negligence, that doesn’t necessarily mean the plaintiff gets compensation. A defendant will use many legal arguments to deflect liability, and in some states contributory negligence is a viable excuse.

Basically, the contributory negligence definition states that a defendant can avoid liability for losses if the plaintiff also shares responsibility. And this condition is very black-and-white.

Meaning that even if the injured-party is barely 1% responsible, it may bar their ability to acquire damages.

The main advantage of contributory negligence is that courts don’t have to determine liability percentages for every party in an accident. Contributory negligence may, however, result in rigid outcomes that result in excessive blame towards the plaintiff.

The Last Clear Chance Doctrine

States have recognized the rigidity of contributory negligence law and implemented exceptions to avoid unfair outcomes. One main exception is the last clear chance doctrine.

Under last clear chance, negligent plaintiffs can claim compensation if the defendant had a clear opportunity to avoid the accident entirely. Defendants may make the same claim under last clear chance as well, leaving some room for arguments on both sides.

Contributory negligence systems make it very challenging for plaintiffs to receive any compensation for injuries. As a result, the majority of states no longer apply contributory negligence and instead skew towards comparative negligence rules.

Contributory Negligence vs. Comparative Negligence

While contributory negligence appears to be more of an all-or-nothing system, comparative negligence presents a more equitable alternative.

In a comparative negligence system, if both parties share responsibility, the plaintiff may still win damages according to their percentage of fault.

Instead of completely negating the ability to recover damages, comparative negligence simply reduces a plaintiff’s compensation by their fault percentage.

Sometimes, both parties may share liability in a personal injury case. But unlike contributory negligence, with a comparative system it means the defendant doesn’t get off scot-free by 1% of negligence.

States that utilize comparative negligence rules generally follow one of these two fault-determining systems:

• Modified comparative fault. In this system, a plaintiff may pursue compensation only if the defendant was at least 50% or 51% to blame. This percentage is ultimately predicated on the state’s laws.
• Pure comparative fault. In pure comparative fault states, an injured party may always file a claim. This is true even if the defendant was less than 50% at-fault. A pure comparative fault system allows a plaintiff who’s 99% at-fault to still sue for damages (though their award would be small or nonexistent).

If you have a personal injury case and you’re unsure whether contributory or comparative negligence applies, you should discuss things further with a personal injury attorney.

Examples of Contributory Negligence in Personal Injury

Contributory negligence can apply in any number of personal injury cases where it’s the prevailing liability law. However, some common types of claims where a defendant might use contributory negligence as a defense include:

• Motor vehicle accidents
• Bicycle or motorcycle accidents
• Pedestrian accidents
• Dog attacks or bites
• Slip-and-fall situations
• Wrongful death

To better illustrate how this might work in an actual claim, consider the following example.

In the case Li v. Yellow Cab Co. of California, both parties drove negligently which resulted in a car accident and significant damages.

Plaintiff Li crossed three lanes of traffic to arrive at a service station. At the same time, a cab owned by Yellow Cab Co. excessively sped to pass a yellow light. Both negligent actions caused Li to suffer injuries and filed suit against Yellow Cab Co.

Even though the taxi driver drove recklessly by speeding through a yellow light, Li was also deemed negligent by crossing three lanes. The contributory negligence laws in California at the time prevented Li from acquiring damages because of her negligent actions.

If you live in a state operating under contributory negligence, you may need an attorney to support your case. You may need a legal specialist to establish evidence that you fulfilled your duty of care during the moment of your accident.

How to Prove Contributory Negligence

In a personal injury case, the burden of proof falls to the claimant. Meaning the plaintiff must show that the defendant’s negligent action or inaction caused the plaintiff’s losses.

However, even if a plaintiff proves this, a defendant may counter with a contributory negligence defense. If a defendant can show that the plaintiff is minimally responsible for the incident, there’ll be no damage awards.

To do this, the defense must demonstrate the plaintiff didn’t act reasonably under the circumstances either. And that their actions had a hand in causing the accident. This falls under the definition of the reasonable person standard.

Because of these rules, personal injury cases in contributory negligence states get very complicated. Accordingly, if you live in a contributory negligence state, you’ll want to consult an attorney before filing personal injury claims for this reason.

What is Contributory Negligence in Insurance Claims?

Contributory negligence doesn’t just rear its ugly head in personal injury cases, but may also surface in insurance claims.

Insurance companies are always looking for ways to pay out less on claims. This is true even if you’re their client. The less they can compensate their policyholders, the more premiums they keep for themselves.

So, let’s say you’re in a car accident and your car sustained massive damage. You file with your insurance company under your collision insurance policy. Your insurance will look for any little details that may indicate partial liability. Even if you’ve not been the recipient of any fault percentage assessment by the police or a court.

If your insurance thinks you play any part in an accident, they’ll try to lowball you with their settlement offer. This is an example of how contributory negligence can play out on a personal level even without a court case.

It’s also a good reason for you to not accept an insurance company’s first offer after a car accident. Instead, it’s a smart idea to have a consultation with an auto accident attorney before accepting any settlement.

Contributory Negligence States

Because contributory negligence rules are so restrictive and tend to favor the defendant, most states no longer use this system. However, there are still a few holdouts, including:

• Alabama
• Maryland
• North Carolina
• Virginia
• District of Columbia

Prove Contributory Negligence With a Personal Injury Attorney

There is no doubt it’s harder to win a personal injury settlement in states that continue to use contributory negligence. There are a few exceptions to the rule, however, like the “last clear chance” doctrine.

Hiring a personal injury lawyer if you live in a state that still follows contributory negligence laws is a must. They can help you explore any workarounds to your case and guide you through the legal process.

Let us connect you with one of the 500+ law offices in our network today. You owe it to yourself to see if there are any viable ways to still get compensation for your claim.