Contributory negligence is an ancient common law doctrine that operates to preclude any financial recovery whatsoever to an individual found at fault — in even the most minuscule way — for causing the accident that led to their injury. According to Attorney Eric T. Kirk who is a personal injury attorney, it should be obvious that the application of this extraordinarily harsh doctrine can result in seemingly wildly unfair results. Currently the law in four states, Maryland, Virginia, North Carolina, and Alabama contains this concept. All other states have adopted a system of “comparative fault” In such a system, the relative degrees of responsibility are weighed and determined by the finder of fact.
In a system premised on comparative negligence a person injured in a car accident is free to seek financial recovery from the other party, and would be entitled to collect compensation, so long as they were less than 50% at fault for causing the subject accident. Once the relative degrees of responsibility are fixed there is an offset in the numbers. So, for example, in a comparative fault jurisdiction, if a jury determines the defendant is 75% responsible for the accident, and the plaintiff is 25% responsible, there’s an offset of that 25%. In this scenario, the injured plaintiff can still recover the difference, or 25% of their damages. Note, however, the difference results in contributory negligence jurisdiction. In this scenario, a plaintiff who was 25% responsible – even in the face of 75% responsibility on the other side- would be barred from any recovery whatsoever. Contributory negligence principles frequently arise in slip and fall accidents, but apply the typical car accident case as well. The results can be devastating. In a contributory negligence jurisdiction, a plaintiff, who is judged after trial to be 1% at fault for causing an injury provoking event against and admitted and acknowledged 99% responsibility from the defendant, would nevertheless be precluded from any financial recovery whatsoever.
These extraordinary and harsh outcomes have led to the creation of judicial exceptions to the concept of contributory negligence, perhaps the foremost of which is the “last clear chance” doctrine. Pursuant to this principle, an injured, but partially responsible plaintiff, is still allowed to collect damages. Here is an example to illustrate. Initially, you have a defendant, who is determined to be negligent, e.g., one who has broken a rule of the road. In this hypothetical, the plaintiff is also determined to bear some responsibility for the accident. The “the last clear chance” concept allows the judge, or potentially a jury, hearing a case to determine that, even though both parties were negligent, the defendant had a “new opportunity” to avert the accident, yet failed to do so. In other words, the defendant had the last clear chance to prevent the collision and was additionally negligent in his or her failure to prevent it. In a scenario where a defendant had a clear opportunity to avoid the accident did not, a plaintiff, even though negligent, and even though the case is heard in a contributory negligence jurisdiction would, nevertheless be allowed to recover.
If you are worried that you are at-fault for your own accident, contact a personal injury attorney near you for help with your case.