Learning Outcomes
This article outlines the common law doctrine of contributory negligence, a defense to negligence claims. After reading this article, you will understand the definition of contributory negligence, its effect as a complete bar to recovery, the standard of care applied to plaintiffs, and the ameliorating doctrine of Last Clear Chance, preparing you to analyze these concepts in MBE scenarios.
MBE Syllabus
For the MBE, you are required to understand the common law defenses to negligence, including contributory negligence. You should be prepared to:
- Define contributory negligence and distinguish it from comparative negligence.
- Analyze the plaintiff's conduct based on the reasonable person standard.
- Apply the "all-or-nothing" effect of contributory negligence on the plaintiff's recovery.
- Identify situations where the Last Clear Chance doctrine applies to mitigate the harshness of contributory negligence.
- Recognize that contributory negligence is generally not a defense to intentional torts or reckless conduct.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Under the common law doctrine of contributory negligence, a plaintiff who is found to be even slightly negligent in causing their own injuries will typically recover:
- Damages reduced by their percentage of fault.
- Full damages, as the defendant's negligence was the primary cause.
- Nothing.
- Nominal damages only.
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The "Last Clear Chance" doctrine serves to:
- Establish the defendant's initial duty of care.
- Allow a negligent plaintiff to recover if the defendant had the final opportunity to avoid the accident.
- Determine the standard of care for emergency situations.
- Impute the negligence of one party to another.
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In a pure contributory negligence jurisdiction, which of the following plaintiffs would be most likely to recover damages?
- A plaintiff who was 10% negligent in causing an accident where the defendant was 90% negligent.
- A plaintiff whose negligence was a remote cause of the accident, while the defendant's negligence was the direct cause.
- A plaintiff who was injured entirely due to the defendant's negligence, with no fault attributed to the plaintiff.
- A plaintiff whose injury resulted from the defendant's reckless conduct, even if the plaintiff was also negligent.
Introduction
Historically, the primary defense to a claim of negligence was contributory negligence. At common law, this doctrine operated as a complete bar to recovery. If the plaintiff's own negligence contributed in any way, however slightly, to the injuries sustained, the plaintiff was denied all compensation from the negligent defendant. This harsh "all-or-nothing" rule has been largely replaced by comparative negligence systems in most jurisdictions today, but understanding the common law rule remains essential for the MBE.
Key Term: Contributory Negligence Conduct on the part of the plaintiff which falls below the standard of conduct to which they should conform for their own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm. At common law, it completely bars the plaintiff's recovery.
The "All-or-Nothing" Rule
The defining characteristic of common law contributory negligence is its effect. If the defendant proved that the plaintiff's fault contributed at all to the plaintiff's injury, the plaintiff recovered nothing, regardless of the relative degrees of fault between the plaintiff and the defendant. Even if the plaintiff was only 1% negligent and the defendant was 99% negligent, the plaintiff's claim was completely barred.
Plaintiff's Standard of Care
The standard applied to determine if a plaintiff was contributorily negligent is generally the same objective reasonable person standard used to evaluate the defendant's negligence. The plaintiff is required to exercise the care for their own safety that a reasonable person would have exercised under the same or similar circumstances.
- Failure to Mitigate: While sometimes discussed alongside contributory negligence, the failure to mitigate damages (or doctrine of avoidable consequences) occurs after the injury and relates to reducing the extent of damages, not barring liability entirely.
- Violation of Statute: A plaintiff's violation of an applicable statute can constitute contributory negligence per se, subject to the same analysis (class of person, type of harm) applied to defendants.
- Children and Incapacitated Persons: Allowances are made for children (judged by the standard of a reasonable child of like age, intelligence, and experience) and those with physical disabilities (judged by the standard of a reasonable person with that disability). Mental deficiency does not alter the standard.
Last Clear Chance Doctrine
To mitigate the harshness of the contributory negligence rule, courts developed the doctrine of Last Clear Chance. This doctrine permits a negligent plaintiff to recover damages despite their own contributory negligence if the defendant had the last opportunity to avoid the accident and failed to do so. It essentially acts as the plaintiff's rebuttal to the defense of contributory negligence.
Key Term: Last Clear Chance Doctrine An exception to the contributory negligence rule that permits a plaintiff to recover despite their own negligence if the defendant had the final opportunity to avoid the harm and negligently failed to do so.
There are two main scenarios under the Last Clear Chance doctrine:
- Helpless Danger: If the plaintiff, through their own prior negligence, is in a position of actual danger from which they cannot escape (helpless), the defendant is liable if they knew or should have known of the plaintiff's predicament and could have avoided the harm but failed to do so.
- Inattentive Danger: If the plaintiff, through their own negligence, is in a position of actual danger from which they could escape if they were paying attention (inattentive), most courts require that the defendant must have had actual knowledge of the plaintiff's predicament and thereafter failed to avoid the harm. If the defendant merely should have known, the plaintiff's contributory negligence remains a bar.
Worked Example 1.1
Pedestrian negligently jaywalks across a busy street without looking. Driver, speeding and texting, does not see Pedestrian until the last second and strikes him. Pedestrian suffers injuries. In a common law contributory negligence jurisdiction, can Pedestrian recover from Driver?
Answer: No. Pedestrian was negligent in jaywalking without looking. This negligence contributed to his injuries. Under the common law rule, any contributory negligence by the plaintiff completely bars recovery, regardless of the defendant's (Driver's) own negligence (speeding and texting). The Last Clear Chance doctrine would likely not apply here unless Driver actually saw Pedestrian in time to easily avoid him but failed to do so (which is unlikely given Driver was speeding and texting).
Worked Example 1.2
Plaintiff negligently stalls his car on railroad tracks at a crossing. The train Engineer sees the stalled car from a distance sufficient to stop the train safely but fails to apply the brakes due to inattention, striking the car and injuring Plaintiff. In a common law contributory negligence jurisdiction, can Plaintiff recover from the Railroad?
Answer: Yes, likely under the Last Clear Chance doctrine. Plaintiff was contributorily negligent. However, Plaintiff was in helpless danger (unable to move the stalled car). The Engineer had the final opportunity to avoid the accident after discovering (or when he should have discovered) Plaintiff's helpless danger. By failing to act, the Engineer negated the effect of Plaintiff's prior negligence, allowing Plaintiff to recover.
Limitations on the Defense
Contributory negligence is generally not a defense to claims based on:
- Intentional Torts: A defendant who commits an intentional tort cannot raise the plaintiff's negligence as a defense.
- Wanton and Willful or Reckless Conduct: Most courts hold that contributory negligence is not a defense when the defendant's conduct amounts to more than ordinary negligence, such as recklessness.
Exam Warning
While contributory negligence is tested on the MBE, remember that the overwhelming majority of states have adopted comparative negligence systems (either pure or modified). Contributory negligence is the historical common law rule. Pay close attention to whether the question specifies the jurisdiction follows common law contributory negligence or a comparative fault system.
Summary
Common law contributory negligence completely bars a plaintiff's recovery if their own negligence, however slight, contributed to their injury. The plaintiff's conduct is judged by a reasonable person standard. The Last Clear Chance doctrine provides a limited exception, allowing a negligent plaintiff to recover if the defendant had the final opportunity to prevent the harm. Contributory negligence is generally not a defense to intentional torts or reckless conduct.
Key Point Checklist
This article has covered the following key knowledge points:
- Contributory negligence is the plaintiff's failure to meet the standard of care for their own protection, contributing to their harm.
- At common law, it acts as a complete bar to recovery ("all-or-nothing" rule).
- Plaintiff's standard of care is typically that of a reasonable person.
- Last Clear Chance doctrine allows a negligent plaintiff to recover if the defendant had the final opportunity to avoid the accident.
- Last Clear Chance applies differently depending on whether the plaintiff was in helpless or inattentive danger.
- Contributory negligence is generally not a defense to intentional torts or reckless conduct.
- Most modern jurisdictions use comparative negligence, but MBE tests common law.
Key Terms and Concepts
- Contributory Negligence
- Last Clear Chance Doctrine
