Contributory Negligence and Why It Matters

Posted Thursday, October 27, 2016 by Ed Harper

What is contributory negligence? Contributory negligence is defined in the State of Washington as “negligence on the part of a person claiming injury or damage that is a proximate cause of the injury or damage claimed.” WPI 11.01.

The essence of contributory negligence (one contributing to their own injury) is an affirmative defense raised by the defendant/respondent to a claim. “Contributory negligence does not exist in a vacuum. Such affirmative defense presupposes negligence eon the part of the defendant… In other words, contributory negligence is a matter of affirmative defense that comes into being only after plaintiff has first established defendant’s negligence and liability. Contributory negligence can exist only as a coordinate or counterpart of a defendant’s negligence.” Godfrey v. State, 84 Wn.2d 959 (1975).

The Revised Code of Washington (RCW) 4.22.010 and .020 were created in 1975 to place into law the idea to allow plaintiffs to recover based on a pure percentage of responsibility or liability. Thus, if a jury finds the defendant 90% at fault, and the plaintiff 10% at fault, the plaintiff can recover for 90% of his or her injuries or damages. In the past, under what is termed common law, a plaintiff who was even a tiny bit responsible, could not recover at all from the defendant.

“Recovery will, however, be diminished in proportion to the percentage of negligence attributed to the party recovering… Under our statutory concept of ‘pure’ comparative negligence, recovery may range from the most miniscule amount to near total recovery.

“The burden of pleading and proving the affirmative defense still rests on the defendant and the same causal connection must be shown. Nevertheless, if these matters are established by a defendant, plaintiff’s cause of action is not abolished. Only his recovery is proportionately diminished under pure comparative negligence.” Godfrey, at 965.

This alteration or updating our statutes to properly reflect the actual percentage of responsibility was a progression away from complete nullification for the plaintiff’s claims. This old way of doing things, under the common law of complete refutation of the plaintiff’s claim, seemed harsh and unjust. Additionally, it puts the burden on the defendant to prove their claim and the percentage of fault they attribute to the plaintiff’s concordant actions. Thus, allowing them to argue – we were responsible for the harm, but the plaintiff is partially responsible as well.

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