We are getting into defenses that defendant’s can make to negate all or some liability. This first section of contributory or comparative negligence relates to the plaintiff’s conduct.

Contributory Negligence

Butterfield v. Forrester

103 Eng. Rep. 926 (1809).

The plaintiff lost the verdict to the jury but was provided a summary judgement.


Does the plaintiff’s negligence negate the negligence of the defendant?


If the accident occurs because of the fault of the plaintiff, then there can be no case against the defendant.


The plaintiff was contributory negligent and therefore cannot collect damages.


The defendant had set out a beam that was sticking out into the road. As it was becoming dark, the plaintiff rode his horse fast into the beam. Here, the witness said that had he been traveling at a safe speed, he would have been able to see the beam and safely avoided it. Instead, because of his speed, he crashed and was quite injured.


Because the plaintiff was not using common and ordinary caution, he cannot be in the right. Therefore, the defendant’s fault will not compensate the plaintiff’s fault when the plaintiff easily could have avoided the danger. For the plaintiff to collect, the defendant would have needed to leave the plank out there as is and the plaintiff would have not exhibited any form of negligence.


Contributory negligence is a complete defense against the negligence of the defendant. It is an affirmative defense meaning that the defendant must make the defense at the beginning of the litigation.

Why do we have the defense? To prevent plaintiffs from coming into the courtroom having done wrong and hoping to be righted despite the wrong.

Is contributory negligence still used? There are only four states that completely negate the defendant’s negligence based on contributory negligence. Instead, most states follow a comparative approach and simply lessen the damages the plaintiff can collect.

Other things to consider:

  • Comparative negligence is not a defense for any intentional torts
  • Can be used when a defendant violates a statute
  • Certain statutes abolish comparative negligence for the purposes of the statute

Additional Notes

This is an affirmative defense. That means that you need to make this pleading at the beginning of litigation or else you lose the defense.

Contributory negligence is considered the classic defense. All this defense is saying is that the plaintiff should not be able to recover if their actions contributed to the injury. Only four states use contributory negligence as a “complete” defense.

How did courts control of the harsh outcomes of contributory negligence? It is nearly always left up to the jury to decide. Additionally, the defendants have the burden of proof to show that the plaintiff was contributorily negligent.

Davies v. Mann

152 Eng. Rep. 588 (1842).


Was the plaintiff liable for contributory negligence?


Last clear chance. If the defendant has the chance to move, and fails to do so, then the plaintiff can collect (regardless of their negligence).


Defendant was at fault, plaintiff can collect.


Plaintiff was at the bottom of the hill resting his donkey when suddenly the driver of a wagon came out of nowhere traveling at a “smartish” pace. The defendant ran over the donkey which died. Turns out that the plaintiff wasn’t keeping the donkey in a completely lawful place.


Although the plaintiff wasn’t 100% lawful in the location of the donkey, the defendant was negligent and had the opportunity to move out of the way. Because he failed to do so, he can be liable for those actions.


The last clear chance doctrine is outlined.

Additional Notes

This rule was an exception to the plaintiff being barred from recovery due to the defendant’s last clear chance of avoiding the injury.

Imagine we are on a train journeying through defenses. We started at contributory negligence and stopped at last clear chance before reaching our destination of comparative negligence.

Comparative Negligence

McIntyre v. Balentine

833 S.W.2d 52 (Tenn. 1992).

McIntyre is the plaintiff. Lost and appealed.


Should Tennessee adopt a comparative negligence doctrine in place of the contributory negligence doctrine?


“As long as the plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may recover.”

If there are multiple defendant’s then the plaintiff’s comparative fault needs to be less than the combined fault of the defendants. If the above is true, then the plaintiff is liable for the percentage that they were negligent.


We can’t rely on the jury here because these are new rules. Remanded for further proceedings.


In trial, both parties were found equally at fault and based on the contributory negligence standard, the defendant was given the verdict.


There are a couple of side effects to the rule above:

  1. Contributory negligence and last clear chance is obsolete
  2. Doctrine of joint and several liability is obsolete
  3. Defendant’s are allowed to raise this as an affirmative defense.

Additional Notes

Why do we have comparative negligence? We believed that contributory negligence was too harsh on a plaintiff.

There are two types of comparative negligence:

  • Pure
    • The plaintiff recovers damages which is reduced by the percent of their fault.
    • I.e. Plaintiff is 90% at fault for damages of 100,000. Plaintiff can collect 10,000.
  • Modified
    • At some point, the plaintiff’s fault is so great that they are barred from recovery.
    • I.e. plaintiff is 90% at fault for damages of 100,000. Plaintiff can collect 0.

Most jurisdictions follow a modified approach. However, there are several types of modified plans.

  • 50% jurisdictions
    • Plaintiff can recover if their fault does not exceed 50% or is not greater than the defendant’s fault
    • Plaintiff can gain 50%
    • Iowa is a 50% jurisdiction
  • 49% jurisdictions
    • Plaintiff can recover as long as their fault is “not as great as,” or is “less than” the defendants.
    • Plaintiff gets 0%
    • Tennessee is a 49% jurisdiction

What if there are several defendant’s? Do we compare the plaintiff’s negligence with each defendant individually, or should we aggregate? If they are individual, then there are very few circumstances where the plaintiff can recover. Iowa uses the aggregate standard.

Who gets certain percentages? Only people who are parties to a case can be attributed a percentage. For instance, a hit and run cannot be sued as a party if you are unable to find them. Additionally, some people may have immunity (such as state government) and can’t be allocated a percentage.

What factors does the jury consider when coming up with a percentage?

  • The parties’ conduct
  • The causal connection between the conduct and the injury

What kinds of conduct is subject to comparison? Negligent and reckless conduct is subject but intentional torts will never be subject to comparison.

Joint Liability

Joint liability is when there are multiple defendants and they are liable for the total amount. Several liability is when there are multiple defendant’s who are individually liable for the amount.

Concurrent joint tortfeasors is when defendant’s act individually but bring about the same crash (pile up car accident).

Concert joint liability is when the defendant’s are acting together which brings about an injury (two drivers distracting each other to cause a car accident).

There are issues with joint liability:

  • There are often times “judgment proof” tortfeasors (a party who doesn’t have the money to pay for damages) causing other defendant’s to pay for the whole judgment. This is not fair to the defendant’s who have to pay.

How have jurisdictions resolved these measures?

  • Forgo joint liability
  • Apply it only if the plaintiff’s are at 0%
  • Apply it only if the plaintiff’s are beneath 50%
  • Use it to recover only economic damages (medical bills, lost wages, etc.)

Defendant’s are jointly liable if they are at 50% or more at fault.

How this all works:

  1. Figure out what the damages of the plaintiff are.
  2. Determine what percentage a party is at fault starting with the plaintiff
    • If the plaintiff is at fault, reduce their amount to recover by the percentage they were liable
    • All parties who are not judgment proof will pay their allocated share of the original damages.
  3. Afterwards, any defendant who is at 50% or more at fault is jointly liable for economic damages
    • Pick up the judgment proof’s percentage, apply it to economic damages, add that to the the allocated share of the party who is not judgment proof.

Partial Settlements

A partial settlement is when the plaintiff needs receives some money from the defendant to cover the expenses of continuing litigation in exchange for a release. That defendant is now out of the picture but there are still other defendant’s present.

After the defendant is released, they can still be given a percentage. At trial, the plaintiff’s damages are reduced by the percentage of fault of the settling party.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Torts

Will Laursen

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