Contributory Negligence….Do My Own Actions Bar Me from Recovering?

Maryland, Virginia and the District of Columbia all continue to utilize an ancient concept called Contributory Negligence (“CN”) when apportioning fault in injury cases.  While CN has been roundly criticized, and abandoned by virtually every other State, it continues to hold sway in the D.C. area.

CN holds that if you contributed to your injuries, no matter how slightly, you cannot recover regardless of the other person’s degree of fault.  Its effect can often be harsh.  For example, let’s say your are driving 65 mph on an open highway where the speed limit is 60 mph.  A driver coming from the other direction abruptly turns in front of you without looking and your vehicles collide, causing you to be severely injured.  Is the negligent driver off the hook because your were speeding?  With CN, that could be the result.

Most States have realized that this rule is too harsh because it does not recognize the relative fault of the parties.  Thus, those States use a concept called Comparative Negligence in this situation.  In Comparative Negligence states, the jury is asked to apportion fault.  If the jury determines that the negligent driver was 90% responsible for the collision, and that you were 10% responsible (because of your speeding), you still recover for your injuries, with your damages reduced by 10%.  As long as the negligent driver was at least 51% responsible for the collision, you recover, with your damages being offset by the amount of your negligence.

With CN, however, the jury is not asked to apportion fault.  Rather, it is simply asked if you contributed to your own injuries in any way.  Even if their answer is that you were 1% at fault, and the other driver is 99% at fault, you lose and recover nothing.  

There are some exceptions to the CN rule.  For example, there is something called the “Last Clear Chance” doctrine, which holds that even if you contributed to the outcome, if the other driver had the Last Clear Chance to avoid the collision, he is still at fault.

But even with exceptions such as this, you can see that CN can be a powerful defense weapon to defeat your claim.


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