Introduction to Contributory Negligence in a Personal Injury Case
In a perfect world, personal injury accidents would be attributed to one person’s actions. There would be an injured plaintiff (who did nothing wrong) and a negligent defendant (on whose shoulders responsibility for the entire accident rests). We do not live in a perfect world, however, and responsibility for personal injury accidents rarely rests on one person’s shoulders. Sometimes the injured plaintiff’s own careless behavior played a role in causing the accident. For example, a slip and fall on a wet floor may not be the fault of the store owner alone. Perhaps there was a sign indicating the existence of a slippery surface – had the injury victim not been talking on his phone, he would have seen the sign and avoided the accident.
Each state has different doctrines that deal with accidents wherein the plaintiff’s own negligence played a role in causing the accident. Some states will completely prohibit a plaintiff from recovering any compensation if he or she was responsible in any way for causing the accident; other states will allow recovery but will reduce the total amount the plaintiff can recover in proportion to the plaintiff’s responsibility for the accident.
Pure Contributory Negligence
In pure contributory negligence jurisdictions, a plaintiff who contributes in any way to his or her injury is prohibited from recovering any compensation from the defendant. It does not matter how minimally the plaintiff’s negligence contributed to his or her injuries – if the plaintiff’s injuries would not have occurred and/or would not have been as severe absent the plaintiff’s negligent conduct, then the plaintiff is not permitted to recover any compensation from the defendant. Expressed in terms of percentages, under the pure contributory negligence rule, if the plaintiff is even one percent responsible for his or her injuries, then the plaintiff will not be permitted to recover damages for his or her injuries. This rule is (naturally) very friendly toward personal injury case defendants.
For example, suppose a plaintiff is injured in a car crash caused by a driver (the defendant) who speeds through a stop sign. Although the plaintiff believes she is injured, she refuses medical treatment at the scene of the crash and instead decides to go home and rest. Later, after she has experienced severe pain for several days, she decides to go to the hospital. There, she discovers that she has suffered serious internal injuries. Her pain and the extent of her injuries would have been slightly less had she gone to the hospital immediately after the accident. In this case, the plaintiff may be found to be partially negligent and she will not be entitled to any damages from the defendant. Only a few states follow the pure contributory negligence approach.
Pure Comparative Fault
Under a pure comparative fault approach, the plaintiff is entitled to recover damages from a negligent defendant regardless of how negligent the plaintiff was in causing his or her own injuries. So long as the defendant is partially responsible for causing the plaintiff’s injuries in some manner, the plaintiff will be entitled to recover compensation from the defendant. Expressed in percentages, if the plaintiff is 99 percent responsible for causing his or her injuries but the defendant is one percent responsible, the plaintiff would still be entitled to recover compensation from the defendant. However, the actual amount of compensation the plaintiff would recover would be reduced in proportion to the amount of fault attributable to the plaintiff. The more the plaintiff is responsible for his or her injuries, the less compensation the plaintiff would be able to recover from the defendant.
For example, suppose a car accident occurs and the at-fault driver (defendant) can be shown to be 60 percent at fault for causing the accident. The injured plaintiff is 40 percent responsible because he was texting while driving and did not see the defendant speeding through the intersection. Suppose further that the plaintiff suffers $100,000 in injuries. Under the facts of this case, the plaintiff would be entitled to recover damages even though the plaintiff’s own negligence played a role in causing the crash. However, the plaintiff would not be entitled to recover the full $100,000 – instead, he would only be entitled to recover $60,000.
Modified Comparative Fault
Finally, several states follow a modified comparative fault rule. Under this rule, the plaintiff is permitted to recover damages from a negligent defendant even if the plaintiff is partially to blame for causing the accident, but only if the plaintiff is not the predominant cause of his or her injuries. Some states have a “50 percent bar,” meaning the plaintiff would not be entitled to any recovery if he or she was found to be equally or more at fault than the defendant in causing the accident. In other words, in a “50 percent bar” jurisdiction, a plaintiff is not entitled to any recovery against a defendant if the plaintiff is just as much at fault for causing the accident, regardless of how severe the plaintiff’s injuries. If the plaintiff is less than 50 percent at fault, his or her recovery would be reduced in proportion to the amount of fault attributable to the plaintiff.
Other states follow a “51 percent bar.” This operates in the same manner as the 50 percent bar, except that recovery is prohibited where the plaintiff is the primary cause of his or her own injuries. If both the defendant and the plaintiff are equally at fault, the plaintiff may still be able to recover some damages. Any fault or negligence of the plaintiff will result in his or her damages award being proportionately reduced.
This system is called a modified comparative fault system in that it combines aspects of the pure contributory negligence scheme and the pure comparative fault scheme. Under the modified comparative fault system, a plaintiff is not barred from recovering damages unless he or she is equally or primarily at fault in causing the accident. This rule avoids the rather “absurd” situation wherein a plaintiff who is 99 percent responsible for a crash can sue a defendant and recover the equivalent of one percent of the plaintiff’s damages. This rule also avoids the harsh results of the pure contributory negligence system in that it does not automatically prevent a plaintiff who may have been partially negligent from recovering some compensation for his or her injuries.
Is Contributory Negligence and Comparative Fault the Same as Assumption of Risk?
The doctrine of “assumption of risk” is different and distinct from either contributory negligence and comparative fault. Like comparative fault and contributory negligence, “assumption of risk” can result in an injury plaintiff’s recovery of damages being denied. However, unlike contributory negligence and comparative fault (which reduce or deny recovery based upon the injury plaintiff’s own negligent actions), the “assumption of risk” doctrine holds that the injury plaintiff is not entitled to recovery because he or she knew the risks of a dangerous or hazardous activity but chose to engage in the activity despite these risks. The assumption of risk doctrine comes into play most often in the case of plaintiffs injured while engaged in certain dangerous activities such as skydiving, whitewater rafting, or jetskiing.
Recall that in the typical personal injury case two of the essential elements of the plaintiff’s case requires the plaintiff to prove that the defendant owed the plaintiff a duty of care – a legal obligation to act or behave in a certain manner – and that the defendant breached this duty of care. The assumption of risk doctrine essentially operates to relieve the defendant of any obligation to mitigate any harm that might befall the plaintiff. In order for the doctrine of assumption of risk to apply, the following propositions must be true:
- The plaintiff must have been informed of and understood the risks of the activity. This means that the defendant must have explained the risks of the activity or situation to the plaintiff and the plaintiff understood these risks. Alternatively, the risks of the activity or situation must have been so apparent to a reasonable person that it is reasonable to expect that the plaintiff knew of these risks.
- The plaintiff must have voluntarily “assumed the risk” by participating in the activity or remaining in the dangerous situation. In other words, there must not be evidence that plaintiff was somehow forced into participating in the activity or prevented from leaving the situation.
- The plaintiff must have suffered an injury as a result of the mechanism or aspect of the activity or situation that makes the activity or situation so dangerous. In other words, the plaintiff must have suffered the type of injury that he or she knew could occur as a result of the activity. For example, it is reasonable to expect that one could be injured by being tossed from a jet ski or suffering some other water-related injury. Unless the plaintiff had reason to know or believe that the jet ski’s electric wiring was faulty, the plaintiff could not have “assumed the risk” if he or she was electrocuted while riding the jet ski.
Suppose that an individual wishes to go scuba diving while he is on vacation. He rents equipment from a local company and is taken out to the ocean by a boat from the company. While scuba diving, he is bitten by a shark and suffers serious injuries. He sues the company for failing to take reasonable measures to protect him from the shark attack. The company may have difficulty raising “assumption of risk” as a defense unless the company specifically warned the plaintiff about the possibility of a shark attack or the area in which the individual was scuba diving was well-known for its shark population. (It is for this reason that many companies that cater to individuals who want to participate in dangerous activities have the participants sign written waivers that inform the participant about the risks of the activity before allowing the individual to participate in the activity.)
Note that the assumption of risk doctrine does not protect a defendant who engages in reckless conduct. In the scuba diving example above, suppose an instructor enters the water and begins engaging in conduct designed to attract sharks to the area of the instructor and individual. In this situation, the company may not be able to hide behind the assumption of risk doctrine due to the reckless conduct of the instructor. For additional information on contributory negligence see the article on understanding contributory negligence.
These doctrines emphasize the importance of both plaintiffs and defendants conducting thorough and complete investigations into the causes of a personal injury accident. Plaintiffs should be aware of what rule their state follows and be prepared to present their case accordingly. Of course, plaintiffs should be aware of the assumption of risk doctrine and read any waiver for a dangerous activity carefully before signing as this can prohibit them from later filing a personal injury case for compensation. Have you been in a wreck? Contact an experienced Phoenix auto accident attorney at Ariano & Associates.