is a common law defense
to a claim based on negligence, an action in tort
. It applies to cases where plaintiffs
have, through their own negligence, contributed to cause the damages they incurred as a result of defendants' negligence. For example, a pedestrian crosses a road carelessly and is hit by a driver who is also driving carelessly. Contributory negligence is distinguishable from contribution
, which is a claim brought by one or more defendants
seeking to have a third party pay some or all of any money damages awarded to a plaintiff
Scope of the Defense
At common law, contributory negligence was originally an absolute defense. If a defendant successfully raised the defense, he would be able to avoid liability for the tort completely. This could lead to injustice where the negligence of a plaintiff or claimant was slight. The defense of contributory negligence would prevent them from recovering any damages at all.
Most jurisdictions in the United States have modified the doctrine, either by court decision or by legislation and have accordingly changed the name to comparative negligence wherein, rather than awarding no damages at all, the jury reduces the compensation to be awarded by a percentage reflecting the degree to which the plaintiff's negligence contributed to cause the damages. In England and Wales, the Law Reform (Contributory Negligence) Act 1945 had a similar effect (the similar, current doctrine being termed Acts of the claimant). Maryland, Alabama, North Carolina, Virginia, and the District of Columbia retain contributory negligence as a complete defense to negligence.
Burden of proof
In some jurisdictions the defendant has to prove the negligence
of the plaintiff or claimant; in others the burden is on the plaintiff or claimant to disprove their own negligence. The tortfeasor may still be held liable if he had the last clear chance
to prevent the injury (the last clear chance
Contributory negligence is generally a defense to tort claims arising out of negligence of the defendant. In contrast, where the defendant's conduct amounts to malicious or intentional wrongdoing as opposed to ordinary negligence the defense does not apply. In England and Wales
it is not a defense to the torts of conversion
or trespass to goods
and in the US it is not a defense to any intentional tort.
"Contributory Negligence" was the title and subject of a circa 1982 poem by Attila the Stockbroker
, a UK
performance poet, protesting at the mere fine given to a rapist after the high court judge determined that the women concerned in some way provoked or contributed to the rape