just to allow recovery if the plaintiff shared some responsibility for causing the injury.<">

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Contributory Negligence/Comparative Negligence

Posted on:10/21/2012
With the rise of negligence suits in the nineteenth century, the requirement of fault (breach of the standard of care) also gave rise to a defense based on fault.


With the rise of negligence suits in the nineteenth century, the requirement of fault (breach of the standard of care) also gave rise to a defense based on fault. It did not seem just to allow recovery if the plaintiff shared some responsibility for causing the injury.

 

A plaintiff’s fault was called contributory negligence and constituted a complete defense to a suit for negligence. It is an affirmative defense that has been replaced by comparative negligence in most states.

 

The courts soon realized that the result of using this doctrine was not always just or fair. In some cases a minor fault of the plaintiff would preclude recovery. Railroad workers, for example, often worked under dangerous conditions in which a moment’s inadvertence could result in serious injury or death. It was not sufficient for the widow and children to prove that the employer had been responsible for the dangerous conditions; if the employee had not been careful, there could be no recovery.

 

Legislatures responded to dangers in the workplace by establishing workers’ compensation, and many courts and legislatures responded with comparative negligence for non-workplace accidents. Under comparative negligence schemes, many of which are statutory, fault is apportioned; that is, if the plaintiff is negligent as well as the defendant, the plaintiff’s award is reduced by the plaintiff's percentage of fault. Thus, if the jury, under the judge's instructions, determines that 80 percent of the fault rests with the defendant and 20 percent is the fault of the plaintiff, the plaintiff is entitled only to 80 percent of the amount of the injuries. If the jury values the plaintiff's injuries at $50,000, the plaintiff would receive $40,000.


  
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