What is contributory negligence?
Contributory negligence is an affirmative tort defense in negligence cases that negates any damages for a plaintiff who is found to have contributed to their own injury, even if that contribution was minimal.
In states that allow this tort defense, a defendant can assert contributory negligence to potentially defeat a plaintiff’s claim entirely, even if the allegations in the plaintiff’s complaint are true.
For example, if a plaintiff is a pedestrian struck by a car, that plaintiff would have to prove that they were a model pedestrian displaying no blame for the incident. But if the plaintiff had been, say, jaywalking or engaging in another kind of negligent behavior at the time of the collision, then they would recover nothing from the defendant who hit them. Currently, Alabama, Maryland, North Carolina, and Virginia are the only states that still follow this harsh rule, in addition to Washington, D.C.
[View our state-by-state comparison of rules on apportionment of fault.]
Contributory negligence is a defense in claims based on ordinary negligence. It is not typically a defense to a claim based on a defendant’s gross negligence or wanton conduct. In general, it is not applicable in strict liability cases or in cases where the defendant violates a statute.
A doctrine to counter this defense is called the “last clear chance doctrine,” which can apply to cases where the defendant had ample time and opportunity to avoid the accident after the plaintiff was negligent. A similar affirmative defense that also acts as a bar to recovery is called assumption of risk, which evaluates whether the plaintiff subjectively knew of the existence of the risk and accepted it anyway.