This article titled ‘Why is Contributory Negligence abolished in most of the states in the USA?’ is written by Pranavaa Pishati and discusses the reasons behind abolishing contributory negligence in most of the states in the USA. I. Introduction Negligence is defined as failing to act with the care that someone of ordinary prudence would have used in… Read More »

This article titled ‘Why is Contributory Negligence abolished in most of the states in the USA?’ is written by Pranavaa Pishati and discusses the reasons behind abolishing contributory negligence in most of the states in the USA.

I. Introduction

Negligence is defined as failing to act with the care that someone of ordinary prudence would have used in the same situation. The defendant had a legal obligation to the plaintiff, and the defendant breached that obligation. However, as per the famous saying, you can’t clap with one hand, so there may be times when the plaintiff also fails to take reasonable precautions for their own safety to curb the conduct of the defendant.

This scenario is termed Contributory negligence, it is a common-law tort rule. regardless of the conduct of the defendant, a plaintiff will be usually disqualified from recovering damages under contributory negligence if they were negligent in any manner in causing the accident, even if the defendant’s act was much more serious. This rule is however abolished in many states of the USA, this article attempts to brief about contributory negligence and the rationale behind its abolition in various states.

II. Contributory Negligence

Contributory negligence is a defence used against a negligence claim. Usually, when an injured party files a negligence claim, the defendant may bring a contributory negligence claim against the plaintiff, claiming that the injury was caused in part by the plaintiff’s own actions. Contributory negligence is used to characterize actions that put themselves at an undue risk without exercising ordinary prudence.

The concept is that an individual has a responsibility to act in a fair manner[1] for their own good. When a person fails to act in this manner and an injury happens, that person may be held wholly or substantially accountable for the resultant injury, even if the defendant party was responsible for the accident’s occurrence.

For instance, the defendant hits the plaintiff with a car as he crosses the street without looking for traffic or heeding the warning of the neighbouring streetlight’s sign. In this case, the plaintiff was negligent, failing to use due caution. As a result, the plaintiff cannot sue for damages because he didn’t take the necessary caution required.

The defence of contributory negligence was first recognized in the English law case of Butterfield v. Forrester (1809)[2]. Although the phrase “contributory negligence” was not used in Butterfield v. Forrester, the rule supplied in Butterfield v. Forrester was considered to be a well-established rule.

The case included a man riding a horse that collided with a pole placed on a public road, causing the rider to be pushed from his horse and injured. The man’s claim for damages was refused because he was deemed to have ridden at high speeds while not using reasonable caution. It was stated that ‘a party is not to cast himself upon a barrier caused by the fault of another, and use himself of it if he himself does not use common and usual prudence to be in the right.’

In circumstances where a person is riding on what is considered the wrong side of the road, it is not permissible for another person to purposefully ride up against them. One who is at fault will not disregard another’s use of ordinary care for himself. Although there was no question that the defendant’s negligent behaviour contributed significantly to the damage, he was not held accountable.

However, it is necessary for the defendant to demonstrate contributory negligence on the part of the plaintiff; otherwise, the plaintiff may be prevented from claiming damages or damages may be reduced depending on the foundation of the fault. When the plaintiff is somewhat at fault, the damages may be reduced; when the plaintiff is entirely at fault, the plaintiff is barred from recovery due to contributory negligence since, in cases where the defence is applicable, his negligence is the only proximate cause of his injury.

The contributory negligence defence was a key component of the American negligence concept adopted in Brown v. Kendall[3] i.e., the fault standard. In this case, two dogs belonging to the plaintiff and the defendant were fighting, and while attempting to break up the fight, the defendant whacked the plaintiff in the eye with a stick. In the trial court, the defendant sought that the jury is given instructions on contributory negligence and a criterion similar to the reasonable person standard, but the judge refused. The jury returned a verdict in favour of the plaintiff, and the defendant filed an appeal.

The court decided that the defendant should only be held accountable if he was at fault. The fault should be decided by whether or whether the defendant acted with “ordinary care and caution,” a version of the reasonable person test. This case used the morally charged language of “fault,” and the connection of negligence with fault[4].

III. Abolition

If the defendant is being held liable for his “faulty,” “unreasonable,” or “wrongful” conduct, the fact that the plaintiff has also been guilty of “faulty” behaviour appears to be something the law should consider, either by limiting the plaintiff’s damages or by rejecting the plaintiff’s right to prosecute entirely on the grounds that a faulty plaintiff should not be heard[5].

Imprudent behaviour is obviously harmful to the plaintiff, but it is difficult to identify any clear moral norm that it violates; the terminology of “wrongfulness” appears largely out of place in the context of contributory negligence. To fail to take the defendant’s actions into account completely would appear unfair since it would constitute an uneven implementation of the fault standard.

The law can restrict people from engaging in conduct that poses an undue risk to their personal safety by withholding recovery, in whole or in part, to the victim who has been contributorily negligent. Such “dysfunctional” victim behaviour is a major source of accidents in almost every major category of personal injury addressed by the law. Any legal rule that has the capacity to lower the occurrence of that behaviour merits our full attention. The safety-incentive reasoning for contributory negligence becomes troublesome when given such emphasis.

As a result, most states have abolished contributory negligence and now use a comparative negligence approach to determine damages, in which each party’s negligence for a particular injury is considered.

IV. Comparative negligence laws

When evaluating damages, the comparative negligence approach weighs each party’s fault for a specific injury. The term “comparative fault” refers to a method of allocating damages among negligent parties based on their respective share of fault. A plaintiff’s negligence would not fully prohibit recovery under a comparative fault system, as it would in the Contributory Negligence Rule, but it will lower the number of damages the plaintiff can claim depending on the plaintiff’s degree of fault. The Comparative Fault Rule permits a harmed party to recover even if it is 99 % at culpability, however, the recovery is reduced by the degree of fault of the affected party.

Hoffman v. Jones[6] was the first judicial adoption of the comparative negligence rule in negligence law decided by the Florida Supreme Court. It rejected the nearly 150-year-old rule of contributory negligence.

In the case of Hoffman v. Jones, William Harrison Jones Jr. was killed by a corporation truck driven by Philip Francis Hoffman Jr. The court barred an injured plaintiff from recovering if the plaintiff had participated in any way to the occurrence. But the Florida Supreme Court established the idea of “pure” comparative negligence, which allows a victim to be compensated for the percentage of harm caused by the individual at fault.

There are two types of comparative negligence-

  1. Pure comparative negligence: It enables you to claim compensation regardless of your level of fault in the accident. Your recovery, however, will be reduced based on your level of fault in the accident. For example, if you were 80 % to blame for the accident, you can only legally seek compensation for the other party’s 20 % guilt. for this very reason, this approach has been criticized for allowing a plaintiff who is significantly at fault to recover a portion of its damages from a defendant who is less at fault.
  2. Modified comparative negligence: Under this approach, each party is held liable for damages in proportion to their own percentage of responsibility, unless the plaintiff’s failure exceeds a specific threshold (e.g., 50 percent or 51 percent). If the plaintiff’s own negligence exceeds this percentage, the plaintiff will be unable to obtain any damages. This approach has been called into doubt due to the complexity caused by many at-fault parties and the uncertainty it gives. The 50 percent Bar Rule is followed by ten (10) states, which means that a harmed party cannot recover if it is 50 percent or more at fault, but it can recover if it is 49 percent or less at fault, however, its recovery is limited by its degree of guilt.

V. Conclusion

Despite the fact that contributory negligence law has been overturned in several decisions, four states continue to follow it. Alabama, Maryland, North Carolina, and Virginia are the four states, as is the District of Columbia. In terms of comparative negligence law, there are now 13 states with pure comparative negligence statutes, while the remaining 33 have modified comparative negligence rules. Ten of the 33 states have a 50% fault threshold, while the other 23 use a 51% fault level[7].


References

[1] E. F. Roberts, Negligence Blackstone to Shaw to? an Intellectual Escapade in a Tory Vein, 50 Cornell L. Rev. 191 (1965) Available Here.

[2] Butterfield V Forrester (1809) 103 E.R. 926

[3] 60 Mass. 292 (1850) WL 4572

[4] Schwartz G, ‘Contributory and Comparative Negligence: A Reappraisal’ (Digitalcommons.law.yale.edu, 1978) Available Here, accessed 6 September 2021

[5] James Jr F, ‘Contributory Negligence’ (Core.ac.uk, 1953) Available Here.

[6] Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)

[7] ‘Contributory Negligence/ Comparative Negligence in All 50 States’ (Mwl-law.com, 2021) Available Here.


  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Updated On 2021-09-22T07:03:11+05:30
Pranava Pishati

Pranava Pishati

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