Updated: Oct 1, 2018
There has been a fight between comparative negligence doctrine and contributory negligence doctrine for decades, and while it is clear that comparative negligence is winning the fight, not every state has adopted the doctrine. Maryland, Virginia, North Carolina, Alabama, and Washington, D.C. all still adhere to the contributory negligence doctrine. Before we get ahead of ourselves though, let us explain these doctrines, and when they apply.
When do these doctrines apply?
- These doctrines apply in negligence based claims (actions in tort). Examples of some negligence based claims are: (1) car accidents, (2) medical malpractice, (3) wrongful death, (4) truck accidents, (5) slip and falls, (6) products liability, and (7) pedestrian accidents.
What is contributory negligence?
- Contributory negligence is a defense to a negligence claim, and is brought about by the defense to eliminate liability on their part if the plaintiff in some way contributed to her or his own injuries. In the 4 states mentioned above as well as Washington, D.C. contributory negligence is a legitimate defense, and if the plaintiff has in fact contributed to her or his injuries, then the plaintiff may be barred completely from recovering from the defendant(s). (Some variations apply to this depending on the jurisdiction).
What is comparative negligence?
- Comparative negligence is also a defense to a negligence claim, and is brought about by the defense to reduce liability on their part if the plaintiff was also negligent in some way which attributed to her or his damages. This means that at trial, a jury or judge would decide the percentage of fault of both parties, and reduce the damages accordingly based on the percentage of fault of both parties. For example, if the defendant was 70 percent negligent, and the plaintiff was 30 percent negligent, then the defendant would only be liable for 40 percent of the damages. (70% - 30% = 40%).
Now that we have explained these doctrines a bit, why are so many jurisdictions in favor of comparative negligence? Quite simply, it is because we want people to fairly be compensated for their injuries, and barring someone from recovery because they were slightly at fault seems quite unfair and archaic. There are times when plaintiff's who were under the umbrella of a contributory negligence jurisdiction were denied their right to compensation simply because they were less than 1 percent at fault! This is widely viewed as unfair, but for some reason there are still jurisdictions that adhere to this doctrine (including the D.C. Metro Area!), why do they continue to adhere to it? The primary argument in favor of the contributory negligence doctrine, is that it keeps insurance rates and premiums down, because less people have the ability to bring a lawsuit (yes this idea is pushed for and lobbied for by the insurance companies). The problem with this argument though, is it is based not on justice, but rather it is based on finances, and that is not what our court systems are supposed to represent. If we looked at cost/benefit analysis for every legal claim made, then we would have far more injustices today, and the fact is that regardless of the cost, every person in this country should have a right to use the courts to obtain a just result.
Imagine if someone who was a common thief stole 5 dollars from a convenience store, and the police refused to arrest him, a prosecutor refused to prosecute him, and a judge/Jury refused to sentence him all because financially it did not make sense. Yes the judge, prosecutor, and police officer all get paid way more for their work than the thief was responsible for stealing, but that does not mean we let him go, rather we arrest, prosecute and sentence him because our society recognizes that some things are more important and transcend a cost benefit analysis. This should be the same line of thinking that goes into whether or not contributory negligence is an old, archaic, and unfair doctrine that should be done away with.
Fortunately, for our jurisdictions (the DC, Maryland, and Virginia areas) there is hope at the end of the tunnel. A recent DC Law known as The Motor Vehicle Collision Recovery Act of 2016 has been enacted (D.C. Law 21-167), and it's purpose as stated in the code is to "limit the application of the doctrine of contributory negligence in cases of collisions between non-motorized users of public highways and motor vehicles." This code allows non-motorized users and pedestrians to bring suit against motor vehicles even if the non-motorized user is at fault to some degree. While this doesn't completely adopt the comparative negligence doctrine for all negligence based claims, this is a clear stepping stone aimed at protecting some of the most vulnerable people on roadways.
Maryland and Virginia have yet to follow suit with this D.C. Act, but in time it appears that this region of contributory negligence jurisdictions will eventually be done away with, and more Plaintiff's will be able to have their day in court.
"Injustice anywhere is a threat to justice everywhere."
By Rocco Turzi