Injured? Beware the Contributory Negligence Rule

If you pursue a personal injury claim in Alabama, you must know about the defense of contributory negligence.

Contributory negligence is the principle that if the person making the injury claim (i.e. the plaintiff) negligently contributed to causing his own injuries, he cannot recover any compensation. Therefore, if you slightly contribute to causing your own injuries, a jury or judge can decide that you get nothing.

Who Decides Whether the Plaintiff was Contributorily Negligent?

In most cases, the question of contributory negligence is for the jury to decide at trial. If the jury concludes that the plaintiff negligently contributed to causing the incident in which he was hurt, the claimant should lose.

However, in some cases, an insurance defense lawyer will file a “motion for summary judgment” asking the judge to dismiss the case. A judge may rule that the claimant is culpable of contributory negligence “as a matter of law.”  If the judge makes such a ruling, the claimant loses his or her case prior to trial.

While the judge usually allows the jury to decide the issue, if the plaintiff’s conduct was absurdly negligent, the judge can dismiss the case on summary judgment.  Here is an example of such a case:

In Wilson v. Alabama Power Co., 495 So. 2d 48 (Ala.1986), a man was severely injured when he came in contact with a 7,200-volt power line while climbing in a tree. The Alabama Supreme Court affirmed a holding that the man was contributorily negligent as a matter of law because he

(1) was aware that the power line ran through the tree,

(2) appreciated the danger, and, despite this,

(3) elected to climb into the tree anyway.

Exceptions to the Contributory Negligence Bar

Even if a judge or jury believes a plaintiff was contributorily negligent, there are two situations in which the claimant can still win.

Wantonness Exception

First, if the defendant’s conduct was “wanton,” then contributory negligence is no defense. Wantonness is conduct carried out with a reckless or conscious disregard of the rights and safety of others. Common examples include driving under the influence and street racing.

Last Clear Chance Exception

The second exception is the rule of subsequent negligence, also known as the “last clear chance” doctrine. If the plaintiff can prove subsequent negligence by the defendant, then contributory negligence is no defense. The elements of proof of subsequent negligence are:

(1) that the plaintiff was in a perilous position;

(2) that the defendant had knowledge of that position;

(3) that, armed with such knowledge, the defendant failed to use reasonable and ordinary care in avoiding the accident;

(4) that the use of reasonable and ordinary care would have avoided the accident; and

(5) that plaintiff was injured as a result. Treadway v. Brantley, 437 So. 2d 93 (Ala. 1983).

As you can see, even if you were contributorily negligent, you could still win your case if the other person knew you were in danger and then failed to use reasonable efforts to avoid the incident.

Most States Do Not Have Contributory Negligence

Contributory negligence is a tough rule for injured people.  The vast majority of the states realized this decades ago and changed their laws. As of 2022, 46 states have some form of “comparative fault.”  In a comparative fault system, the injured person’s damages are reduced in proportion to their degree of fault.

For example, in a comparative fault state, if you were 10% at fault for a car accident, you would receive 90% of your damages. But in Alabama, if a jury believes you were 10% at fault, you lose your case.

All of Alabama’s neighboring states (even Mississippi!) have a comparative fault system. Yet Alabama and three other states have retained the contributory negligence doctrine.

Let Us Review Your Case

Even if you think you may have contributed to the accident in which you were injured, let a personal injury lawyer review your case. Personal injury lawyers do not charge a consultation fee and are only paid if they win your case.  We have helped many people overcome the contributory negligence defense to win their case.