Contributory negligence is a common law tort rule which bars plaintiffs from recovering for the negligence of others if they too were negligent in causing the harm. Contributory negligence has been replaced in many jurisdictions with the doctrine of comparative negligence.
In the field of tort law, a plaintiff can recover against a negligent defendant by proving that:
- The defendant owed a duty to the plaintiff.
- The defendant breached that duty to the plaintiff.
- The plaintiff suffered harm due to the defendant’s breach.
In a jurisdiction that follows contributory negligence, a plaintiff who is at all negligent cannot recover, even if they establish the above elements. For the purposes of contributory negligence, the degree of the plaintiff’s/defendant’s respective negligence is irrelevant, thus a plaintiff who was 1% negligent will receive nothing from a defendant who was 99% negligent. The advantage of this all or nothing rule is that it does not require the courts to accurately determine the degree of blame each party shares for the harm. On the other hand, the application of contributory negligence can lead to outcomes society deems inequitable.
Because of the all or nothing nature of contributory negligence, courts developed a collection of exceptions to standard contributory negligence over the years. For example, under the doctrine of last clear chance, a negligent plaintiff can still recover if the defendant was the only party capable of preventing the harm through reasonable means and nonetheless failed to do so.
The majority of jurisdictions, however, have gone even further in limiting the application of contributory negligence by eliminating the doctrine altogether in favor of comparative negligence. Under comparative negligence, a negligent plaintiff can recover against a negligent defendant for the defendant’s share of the blame. For example, a plaintiff who was 5% negligent can recover compensation for 95% of the harm.
Nonetheless, the doctrine of comparative negligence is still followed in Maryland, Virginia, Alabama, and North Carolina.
[Last updated in July of 2022 by the Wex Definitions Team]