Contributory Negligence

Contributory Negligence
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 plaintiffs award is reduced by the extent to which
plaintiffs 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 plaintiffs 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 plaintiffs failure to heed the warning does not constitute
contributory negligence.
Intentional Torts
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.
Rescue Doctrine
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.

Leading Cases
Alexander v. Kramer Bros. Freight Lines, Inc. Alexander sued Kramer Brothers after he
suffered personal injuries in an accident with the defendants 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.

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