Torts II

Contributory Negligence

Contributory negligence completely bars recovery when the plaintiff was himself negligent.

Contributory negligence does not apply when the defendant's conduct was intentional, willful or wanton, but it does apply to violation of statute.

Contributory negligence is the minority rule, only being applied in four states and D.C.

Contributory negligence's cause in fact uses the substantial factor test.

Contributory negligence must also be proximate, although this is rarely an issue.

Contributory negligence is similar to mitigation of damages but is based on actions causing the harm, not merely increasing the damages afterwards.

Contributory negligence's essence is negligence; it does not require actual knowledge like implied assumption of risk.

Contributory negligence was established in Butterfield.

Last Clear Chance

Under the last clear chance doctrine, when both sides' negligence contributed to an accident, the party that had the last clear chance to avoid the accident is the one that is liable.

It was created in Davies v. Mann.

If used, it changes the rule of contributory negligence by only considering the plaintiff negligent when he was the one with the last clear chance to avoid the accident.

It is codified in the Restatement Second of Torts §§ 479–480.