What is Contributory Negligence?

May 04, 2022

Victim/plaintiffs have zero chance of obtaining maximum compensation if their claims cannot withstand the contributory negligence defense. This legal doctrine shifts accident blame from tortfeasors (negligent actors) to injury victims. As outlined below, this defense is very common and comes up in a number of different injury claims.

Contributory negligence procedure is largely the same in all states. If there is evidence that both parties are at fault, jurors must divide responsibility on a percentage basis, such as 50-50. The underlying law is different in different states. California is a pure comparative fault state. Even if the tortfeasor is only 1 percent responsible for the accident, the victim is entitled to a proportionate share of damages.

These damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. A Los Angeles personal injury attorney might also be able to obtain additional punitive damages, in some extreme cases.

Vehicle Collisions

One of the law’s most famous vehicle collision comparative fault cases doen’t involve motor vehicles.

In 1842’s Davies v. Mann, one person allowed his donkey to graze on the side of the road. Another man approaching in a wagon “at a smartish pace” then “ran against the ass, knocked it down, and the wheels passing over it, it died soon after.” The court ruled that both drivers were at fault. Driver A shouldn’t have let his donkey graze on the road, and Driver B should have slowed down.

As mentioned, in today’s California, jurors must divide fault on a percentage basis in these cases. To do that, they need more evidence.

The wagon’s speed is a good example. If Driver B was only speeding a little, jurors might say the other driver was mostly at fault. But if Driver B was moving like a streak of lightning, jurors might decide he was mostly at fault.

In other words, evidence can establish the comparative fault defense. Likewise, evidence can take it down. So, it’s not enough to build a negligence claim and stop there. Additional evidence is usually necessary to obtain maximum compensation.

Davies also introduces the sudden emergency defense. This doctrine is basically comparative fault on steroids. Drivers, and other negligent actors, are not liable for damages if they reasonably react to a sudden emergency. Arguably, a donkey on the side of the road is a completely unexpected situation and therefore a sudden emergency.


The comparative fault defense also comes up in many fall injury claims. Essentially, insurance company lawyers argue that the victim didn’t watch where s/he was going. This defense is easier to prove if the victim was using a device while walking.

To counter the contributory negligence defense in fall claims, attorneys often use the physical environment or the victim’s pre-existing conditions. The physical environment usually relates to the lack of light in a room. Pre-existing conditions include poor eyesight and poor balance. Pre-existing conditions, like a prior fall, could also affect the severity of fall injuries.

There is also an enhanced form of contributory negligence in fall injury claims. Landowners are not liable for damages if “a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” The open and obvious defense could apply to supermarket aisle displays or a patch of ice and snow on a sidewalk.

The aforementioned pre-existing conditions could refute the open and obvious defense. If a person cannot see well, what might be open and obvious to one person is a hidden danger to the victim.

Sexual Abuse Claims

This defense usually doesn’t apply in these cases. But that fact doesn’t discourage insurance company lawyers from trying it.

In these cases, comparative fault usually impacts causation. Basically, the insurance company argues that the assault was the victim’s fault.

But there is a big difference between an assault and a car crash or fall. Vehicle collisions and falls are unintentional torts, at least for the most part. But assault is an intentional tort. These tortfeasors are determined to hurt another person, regardless of the circumstances. Nothing the victim does or doesn’t do can change that determination. Injury victims are entitled to substantial compensation. For a free consultation with an experienced personal injury attorney in Los Angeles, contact Attorney Sharona Hakim at the Law Offices of Eslamboly Hakim. You have a limited amount of time to act.

Photo by Aleix Ventayol on Unsplash

Sharona Hakim

Sharona Eslamboly Hakim, Esq. is a successful personal injury attorney and the principal of the Law Offices of Eslamboly Hakim firm in Beverly Hills, California.

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