Contributory Negligence

Contributory negligence is conduct on the part of the plaintiff that contributes to the events leading to his injuries.

The basis for this defense is that everybody has a duty to avoid injury at the hands of another and, if you fail to protect your own safety, you may be barred from recovering for your injuries.

Please note that the plaintiff’s conduct is always measured by the reasonable man test. Thus,the plaintiff acting under normal circumstances will be judged by what the reasonable man would have done under those normal circumstances. However, if the plaintiff is confronted with an emergency situation, his conduct will be compared with that of the reasonable person under those same emergency circumstances.

Further, if the plaintiff is faced with an immediate danger, the law will allow him to take extraordinary risks in protecting himself without finding contributory negligence.

Most jurisdictions hold that children can be held as contributing to their own injuries and that their conduct will be measured by the reasonable child test.

Under common law, a plaintiff’s contributory negligence was an absolute and complete bar to recovery, meaning that if a jury found contributory negligence, the plaintiff could not recover against the defendant at all. For example:

Dave is an avid bungee jumper who goes jumping whenever he can. He has been planning a trip for several weeks to Schnipper’s Cliff and he buys new gear for the trip. When he gets to the top of the cliff and unpacks his gear, Dave notices that the new bungee cord he has bought is frayed. Dave knows that using a frayed cord is not safe but he decides to risk it anyway. Sure enough, the cord snaps on Dave’s first jump and he is severely injured. If Dave sues the cord manufacturer in a contributory negligence jurisdiction, he will not be able to recover anything for his injuries. Contributory negligence is a complete bar to recovery and, since Dave contributed to his own injuries, he will be barred from recovery.

However, most jurisdictions today have adopted the comparative negligence standard that will reduce plaintiff’s recovery but not bar it completely.