Contributory and Comparative Negligence

 Contributory and Comparative Negligence 

Accidents are an everyday event. Even as you read this article, there are accidents taking place across the United States. The first question that arises in any accident is “who is at fault?” Sometime the answer to this question is obvious. But sometime the answer is not obvious and the principles of contributory and comparative negligence must be used to determine who is at fault. For example, John who was driving his car knocks down a pedestrian at a traffic light. John had the right of way – the traffic light was green. There was a board at the intersection which clearly warned pedestrians against cross the road at the intersection. If the pedestrian makes a negligence claim against John, the court must decide who is at fault. John can raise the defense of contributory negligence – the accident occurred because the pedestrian was wholly or partly at fault. If John proves that the pedestrian was negligent, the pedestrian’s right to recover for the injuries will be barred or reduced by the percentage of his negligence. The issue of proving fault in such cases is complex and will require the services of an experience attorney.


When a person fails to exercise the degree of care that an ordinary prudent person would exercise under the similar circumstances, he or she is said to be negligent. Professional persons, such as teachers or administrators, will be held to a standard based on the skills and training they should have acquired in their professional training and experience. A court or jury considering a charge of negligence may well ask if the teacher involved acted or behaved as a reasonably prudent teacher should have behaved under similar circumstances. Even if the act is totally unintentional, the teacher may be found negligent if the judge or jury believes he or she did not act as one might expect a reasonable teacher to act.

For a plaintiff to prove a claim of negligence, he or she must present evidence of four separate elements:

  • The defendant owes a duty of care to the plaintiff
  • That duty was breached by the defendant
  • The breach of duty must result in an injury to the plaintiff
  • The defendant’s breach of duty must have been the proximate cause of plaintiff’s injury

Courts have agreed that teachers have a duty of care while they are “on duty.” For example, during class time, it is a reasonable expectation to assume that teachers will exercise adequate supervision of students. Some important tort cases have gone against teachers who were absent from their classrooms or duty stations when a serious injury took place. While it is clear that teachers should be in their classrooms during class time, it is not so clear whether or not a duty exists on school grounds before or after the school day. Courts must determine if preschool supervision is within the teacher’s “scope of duty.” Such cases are decided considering state law, school policy, contractual agreements, past practices, and a host of other variables.

Continuing with the classroom supervision example, and assuming that a duty exists, breach of the duty might be found where the teacher responsible is gone from the classroom for an extended period of time. Failure to take appropriate action (omission) that may have prevented an injury from occurring is also actionable. Most school districts have policies designed to avoid such practices and omissions.

The third element requires the party bringing suit to have actually sustained an injury. This issue is not as simple as it may appear, especially when emotional injury is claimed. Emotional injury, though more difficult to prove, is also allowed as a compensable form of injury. Originally, emotional harm had to be accompanied by physical injury in order to be compensable. In more recent years, however, such harm can form the basis of a tort action by itself and can, in some cases, prove as costly as many kinds of physical injury.

Proximate cause means that without the act or omission, the injury probably would not have occurred. Using the classroom example, a teacher leaving a room full of unsupervised students could lead to students throwing objects. In at least two major tort cases, a student sustained permanent eye damage while the supervisor was absent. In such a scenario, the teacher’s absence was not the immediate or direct cause of the injury (another student throwing the object was), but the absence was still considered the proximate cause because the court reasoned that if the teacher had been in the classroom, the injury would not have resulted.

Contributory Negligence

Under the contributory negligence theory, the defendant argues that the plaintiff contributed to his or her own injury. Typically no damages are awarded to the plaintiff if this defense is successfully argued. A person must exercise the degree of care that an ordinary prudent person would exercise under the similar circumstances. If he or she fails to do so and is injured as a result, he or she may be wholly or partly responsible for the injuries even if another person or party was involved in the accident. In a negligence lawsuit, the plaintiff must prove negligence before the defendant can claim contributory negligence as a defense. The defendant must prove contributory negligence in the same manner as the plaintiff is required to prove negligence.

Comparative Negligence

Many states have adopted the principle of comparative negligence. Comparative negligence reduces rather than bars recovery. Basically the reduction is by the percentage by which the plaintiff’s negligence contributed to the injuries. Thus in California for example the rule is that in an action for negligence resulting in injury to a person, the contributory negligence of the person does not bar recovery but the damages awarded will be reduced in proportion to the amount of fault attributable to that person.

Forms of Comparative Negligence

Some states rely on a pure form of comparative negligence while others use modified forms. Under the pure form, the recovery of the plaintiff is reduced by the proportion of his negligence. Under the modified forms, the plaintiff’s recovery is reduced in the same manner but he receives no recovery whatsoever either if he was more negligent than the defendant or depending on the variant of the modified form, if he and the defendant were equally negligent.

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