Personal Injury: What is Contributory Negligence

May 2000

Introduction

Accidents take place everyday, people are injured and property is damaged. When accidents happen, one of the first questions people typically ask is "Who was at fault in the accident?" Contributory negligence law addresses this question and provides a way to allocate fault between parties when the answer to this question is not entirely clear. For example, Dave, a motorist, strikes Sally, a pedestrian who was crossing the street without carefully checking traffic or heeding the warning of the do-not-cross sign of the nearby streetlight. Who is at fault in this situation? This complex situation begins when the injured party asserts a negligence claim against the wrongdoer. The defendant (the person sued) may then assert a contributory negligence claim against the plaintiff (the person bringing the lawsuit), in effect stating that the injury occurred, entirely or in part, as a result of the plaintiff's own actions. If the defendant is able to prove the contributory negligence claim, the plaintiff may be totally barred from recovering damages or her damages may be reduced to reflect her role in the resulting injury. As one might imagine, claims addressing this "fault" issue can become very complex. An attorney, experienced in dealing with negligence and contributory negligence, can help sort through the problem and will work for a fair settlement that reflects both parties' responsibility for the injury.

Negligence

Negligence is a term used to characterize conduct that creates an unreasonable risk of harm to others. In order to prevail on a negligence claim, the party will have to prove several things. First, the person claiming injuries will have to show that the defendant had a duty to act in a certain manner towards the injured person. The general rule is that an individual has a duty towards all persons, at all times, to exercise reasonable care for the person's physical safety and property. For example, Dave has a duty to Sally to operate his car in a reasonable manner and to be mindful of her safety, even though there is no special relationship between Dave and Sally.

Next, a successful plaintiff must prove that the defendant failed to act in a reasonable manner. Using the previous example, if Dave operates his car in an unreasonable manner, it is said that he has "breached" his duty of care toward Sally. Thus, Dave has been negligent. The determining factor as to whether conduct is reasonable is based on whether a prudent person could foresee that certain conduct would pose a risk to others. For example, a prudent person could foresee that driving 90 miles per hour in a 30 mile per hour zone would pose a risk to others and would easily be characterized as unreasonable behavior.

Lastly, the plaintiff must show that he or she suffered actual damages or loss as a result of the unreasonable behavior. If Dave drives 90 miles per hour down the street he may be in violation of speeding laws but Sally does not have a claim against Dave until she is injured as a result of Dave's unreasonable driving. However, in the opening example, Sally carelessly walked out into the street before Dave struck her. In this case, Dave is likely to assert contributory negligence as a defense against his liability for Sally's injuries.

Contributory Negligence

Contributory Negligence is used to characterize conduct that creates an unreasonable risk to one's self. The idea is that an individual has a duty to act as a reasonable prudent person. When a person does not act this way and injury occurs, that person may be held entirely or partially responsible for the resulting injury, even though another party was involved in the accident. In the previous example, Sally carelessly walked into the street, potentially making her partially responsible for the accident. Contributory negligence is a defense to a negligence action. Procedurally, negligence must be asserted and proved by the plaintiff before the defendant will be allowed to introduce evidence of contributory negligence. Contributory negligence is then proved in the same manner that the initial negligence claim was established.

Most states have now adopted a comparative negligence approach to contributory negligence, whereas traditionally, the courts viewed contributory negligence as a total bar to the recovery of any damages. Under the traditional view, if a person had contributed to the accident in any way, the person was not entitled to compensation for his or her injuries. In an attempt to reduce the harsh, oftentimes unfair outcomes resulting from this approach, most states have now adopted a comparative negligence approach.

There are two approaches to contributory negligence. "Pure" contributory negligence is the most flexible approach used to allocate fault. Under pure comparative negligence, a plaintiff's damages would be totaled and then reduced to reflect her contribution to the injury. For example, if a plaintiff was awarded $10,000 and the judge or jury determined that the plaintiff was 25% responsible for her injury, she would be awarded $7,500. Even if the plaintiff was 90% responsible for the injury, she would be entitled to recover 10% of the total damages. Louisiana has adopted this "pure" comparative negligence approach.

Contributory Negligence in Louisiana

The Louisiana Legislature in 1979 amended Civil Code Article 2323 to provide for a pure comparative negligence regime - the plaintiff's contributory negligence does not bar recovery but reduces it by his or her portion of the fault. In 1996 the legislature went further to make a Louisiana a true comparative fault jurisdiction. The 1996 amendment to Civil Code Article 2323 provides that:

In an action for damages where a person suffers injury . . . the degree or percentage of fault of all persons causing or contributing to the injury . . . shall be determined, regardless of whether the person is a party to the action, and regardless of such person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032 (the employer immunity - workers compensation provision), or that the other person's identity is not known or reasonably ascertainable.

Thus, the fault of all persons who contributed to the injury, including employers and unknown participants, must be quantified. The allocation of fault must total 100%.

What does a judge or jury consider in allocating fault? The Louisiana Supreme Court in the case of Watson v. State Farm, outlined various factors in assessing fault among the parties: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great of risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

Conclusion

Contributory negligence is an important legal doctrine for both plaintiffs and defendants. An individual who has been injured by negligent conduct may be reluctant to bring a negligence claim given the fact that they were partly at fault for their injury. On the other side of that coin, when the victim has been partly responsible for his or her own injuries, a defendant may not be required to fully compensate that person for all of his or her injuries. At Bice & Palermo, L.L.C., we are experienced in handling complex comparative fault issues. We believe all those who are responsible for your injuries should be held accountable for money damages. Please contact an attorney as soon as possible after you have been injured to protect your rights.