When I evaluate a potential tort case, contributory negligence is laways an overiding concern. Contributory negligence is a defense in a tort case to a negligence claim. The best example of all of these concepts is the classic automobile collision. Driver One says that he was driving along, minding his own business, when driver Two turned across his lane, causing a collison. Driver Two admits that he turned in front of driver One, who had the right of way. But, says driver Two, One was speeding and was also at fault. Under the defense of contributory negligence, if the judge or jury hearing the case finds that driver One was in fact speeding, One would not recover from two, even if the judge or jury determined that driver One was only 1% at fault.
This law can result in some awfully unfair outcomes. For instance, let’s add some facts to the example above. Driver One is actually your daughter, Jane. She is driving home from work a little too fast (5 mph over the limit) because the baby sitter has to be in class by six. Driver Two clearly ran the red light – he actually sped up when the light turned yellow in an effort to beat the light. As a result of the collision, Jane’s car is totaled, both of her legs are broken and she incurred $25,000 in medical bills. Jane will be out of work – she is a gym teacher – for two months. Two walked away without a scratch. At the trial of the lawsuit she filed against driver Two, an accident reconstruction expert testifies that had Jane been doing the speed limit – driving 5 mph slower – the collision would not have occurred.
When the Judge instructs the jury on the law, she explains contributory negligence and relates that Jan cannot recover if her negligence, however slight, caused or contributed to the collision. Is that fair? It surely doesn’t seem so. Her fault hardly compares to Two’s, and he suffered no injury.
Let’s rub some salt in the wound and add one more fact. The collision occurred 300 feet on the Alabama side of the State line. Had it occurred 500 feet to the west, in Mississippi, comparative fault (or comparative negligence) would be the law. If that same jury, on those same facts, found that Jane was 2% at fault and that driver Two was 98% at fault, the jury’s damage award would only be reduced by the amount of her comparative fault – 2%. In Alabama, it would be reduced to nothing – and that is not right.
Cum Laude graduate of Cumberland School of Law, Pet Mackey is a civil trial litigation expert who represents plaintiffs in business and consumer tort, contracts and construction, employment disputes and insurance. He is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy, a Certified Alabama Mediator, and an “AV” rated lawyer by Martindale-Hubbell.