What’s the Difference Between Contributory Negligence and Comparative Negligence?

Sometimes a defendant’s negligence is clear and palpable, and the sole cause of a plaintiff’s injuries. For example, consider a patient who undergoes surgery and the physician mistakenly leaves a sponge inside the plaintiff’s body. The patient has done nothing wrong and only the physician’s malpractice caused any resulting harm. But sometimes, things are more complicated. For example, what happens if two drivers are both speeding, which results in an automobile collision and injuries? Are lawsuits still allowed? In this article, we will discuss how the law handles such a situation.

Historical Look at Contributory Negligence

Historically, a common law concept called “contributory negligence” developed. In Butterfield v. Forrester, a famous English case decided in 1809, a man was riding his horse on a public road when he ran into a pole placed there by a nearby homeowner. As a result of the collision, the rider was thrown from his horse and injured. He sued the homeowner. A witness testified that, although it was 8:00 p.m. and people were lighting their candles, the pole was visible from 100 yards away. The witness also stated that the plaintiff was riding his horse at a high rate of speed. The Court ultimately held that the plaintiff could not recover, even if the homeowner was negligent, because the rider did not use ordinary care for himself.

This doctrine, subsequently labeled “contributory negligence,” provided that any negligence on the part of a plaintiff which contributed to his or her injuries completely barred the plaintiff’s claim. Some have argued that this theory motivated people to act as carefully as possible on their own behalves to avoid this harsh result. On the other hand, it seems inequitable that a plaintiff who is 1% negligent could be barred from recovering against a defendant who is 99% negligent due to the existence of this defense. Many jurisdictions eventually found such a result draconian and searched for a better alternative.

Development of Comparative Negligence

Over time, the concept of “comparative negligence” developed. Under a comparative negligence construct, when the plaintiff and defendant (or defendants) are both negligent, the plaintiff can still recover. However, there are multiple types of comparative negligence statutes, which vary by State.

For example, under a “pure” comparative negligence statute, the plaintiff can recover no matter how much his or her negligence contributed to the injury. For example, if the plaintiff is 95% negligent, recovery is still permitted. However, under such a rule, the defendant generally is only responsible for 5% of the plaintiff’s damages. More States, however, use a form of “modified” comparative negligence. Most often, the plaintiff’s claim will be barred if the plaintiff’s negligence exceeds 50% or 51%, depending on the State.

Comparative Negligence in Oregon

Oregon’s comparative negligence statute is codified at 2017 Oregon Revised Statutes Section 31.600. In Oregon, a plaintiff’s recovery will not be barred, as long as the plaintiff’s negligence does not exceed the combined negligence of all defendants, all third-party defendants, and any person with whom the plaintiff has settled. Many times, these percentages of negligence are disputed questions of fact which must be determined by a jury.

Call with Questions

At Nelson MacNeil Rayfield, we appreciate that the law of contributory and comparative negligence has been modified over time in an attempt to fairly address the fault of all parties in a negligence action. We have always believed that society is best protected when all citizens are held accountable for their behavior. But we also appreciate that such rules can be confusing at times. If you have been injured as the result of another person’s negligence, even if your own conduct contributed to the harm, you very well may still be entitled to pursue a claim. We can help you investigate and understand your rights. Please feel free to call one of our experienced lawyers with your questions.

 


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