Contributory negligence : An

outmoded defense that should be

abolished
I Am Speaking Today In Support Of The Propostion That Contributory Negligence
Should Not Be A Complete Defense To A Claim For Negligently Inflicted Personal
Injuries Or Property Damage,And That It Is Desireable To Change The Existing Law By
Apportioning The Damages In Accordance With The Percentage Of Fault Of The
Respective Parties. The Views Which I Advocate Has Frequently Been Described As
The Doctrine Of Comparative Negligence ,But It Is More Accurately Described As A
Question Of The Apportionment Of Damages.

Preliminarily, I Wish To Make A General Observation About The Functioning Of Law.

Dean Roscoe Pound Pointed Out Many Years Ago That Law Is Socail Engineering
.Neither Common -Law Rules Nor Statutes Are Ends In Themselves. They Are Always
Means To The End Of Securing The Best Possible Social Adjustment Of Conflicting
Interest. It Is The Best Interests Of Society Which Should Be Served By The
Promulgation Of A Common-Law Rule Or The Enactment Of The [Link] Law
Should Be A Means To Eliminate Or Reduce Social [Link] Is Inevitable That When
A Common Law Rule Is First Announced Or A Statute Is Enacted,It Is Designed To
Meet The Then Current Needs Of The Community Caused By The Current Condition
. It Is A Truism That Changes In Community Conditions Come About More Rapidly
Than Changes In Our [Link] Some Cases The Continued Application Of An Old Law
In A Community Which A Undergone Extensive Economic,Industrial And Social
Changes Increases The Very Social Friction Which The Law Originally Was Designed
To Reduce.

The Rule That Contributory Negligence Is A Complete Defense Is A Product Of The

Early 19th Century . That Century Was One In Which Tort Law Did Developed :And
The Law Of Negligence Developed Extensively , Particularly In The Last Quarter Of
The Century. However, It Was Also A Century In Which Both English And American
Judges Believed That There Must Be Definite Restriction On Tort Liability In Order To
Avoid Liabilities Which Would Hold Back The Growth Of Plants,Factories,Railroads
And Other Industrial Enterprises. There Was No Liability Insurance .A Few Large Tort
Judgements Might Bankrupt A Growing Business Which The Community Needed.

In This Atmosphere,The Doctrine Of Contributory Negligence As A Complete Defence

Was Promulgated In 1809 By Lord Ellen Borough In Butterfield Vs. Forrester .Actually
, Lord Kenyon Had Proclaimed It In A Charge To The Jury In 1799 In Cruden Vs.
Fentham ,But The Jury Had Refused To Accept It (As So Many Jurists Have Ever
Since),And Found A Verdict For The Plaintiff.
This Far-Reaching New Doctrine Was Rather Casually Written Into The English Law In
A Few Sentences, And Was Accepted By The Bench And Bar And The Nation With
Scarcely Any Comments. It Provided What Was Generally Believed To Be A Needed
Limitation On Tort Liability Under Early 19th Century [Link] The Century
Progressed And Factories Grew The Principal Application Of The Doctrine Was To
Master-And-Servant [Link] Rule ,Plus Two Other Rules I.E. ,The Fellow-Servant
Doctrine And Voluntary Assumptions Of Risk, Greatly Limited The Tort Liability Of
Manufacturers And Contractors To Third Persons Was Restricted By The Rule That
There Was No Tort Liability In The Absence Of Privity Of Contract .The 19 th Century
Was Also The Century In Which ,In Most Situation, There Was No Contribution
Among Tort Feasors .

Contributory Negligence….A shocking Doctrine

When you analyse Contributory Negligence as a complete defense it is a shocking and
immoral doctrine. It would have created an intolerable situation long before now
except for two factors:

[Link] many cases juries refused to apply it , and,

2. In recent years our Appealate Courts have shown and increase in

reluctance to define Contributory Negligence as a matter of law.
However, there still remains a considerable residuum of situations in which the issue
of Contributory Negligence is decided by the court alone. In its principal application ,
the Doctrine of Contributory Negligence provides that when two persons by their
respective fault cause harm,one of them must pay for [Link] one pays is wholly
dependent on who was lucky and who was [Link] outcome depends upon the
spin of wheel of chance ,the roll of the dice of the fate. For e.g.- Take the familiar
typical illustration of a right-angle interscection collision between two motorists ,A
and B .A is unlucky and suffers personal injuries, medical expenses and loss of income
totally Rs 143000.B is lucky and escapes with property damages of Rs [Link] total
damages are Rs [Link] it not revolting that Rs 143000 of that must borne by A
and only 14000Rs by B ????Would it not be equally revolting if the wheel had spun
differently and the impact of damages on A and B had been reversed???If ,after the
collision ,one of the cars had mounted the sidewalk and damaged C, A
pedestrian , in the amount of Rs157000 ,that total damage would be divide between
A and B ,under Modern Rule of Contribution .If A and B must divide up the damages
they jointly cause C,why shouldn’t they divide up similarly the damages they cause
each other????

Because the rule of Contributory Negligence is so shocking and unjust,England created

the LAST-CLEAR-CHANCE RULE to ameliorate it in 1842,in DAVIS [Link] .That
rule adopted in some 45 American States ,was equally unjust because it also placed all
the burden on party ,but shifted the loss from the plaintiff to the [Link] has
frequently,with some reason,been called “THE JACKASS RULE” .

At the beginning of the 20th century,trespass cases between Master and Servant
clogged the courts as Motor Vehicle Accident cases clogg the courts [Link]
the 1st decade of the 19th century and the 1st decade of the 20th century,such great
changes had been wrought in industry, transportation and manufacturing that the felt
needs of the times cried allowed for changes in our tort law.

The Doctrine of Contributory Negligence and it’s corollaries ,voluntary assumption of

risk and THE-FELLOW-SERVANT RULE ,were swept completely out in the MASTER-
AND-SERVANT Field by WORKMEN’S COMPENSATION ACTS. In 1916 Judge
CARDOZO decided MACPHERSON vs. BUICK MOTOR CO., AND today no vestiges
of the 19th century limitation on the liability of manufacturers and contractors
[Link] in this Century The rules concerning Contribution among Tort Feasors
have undergone great change.

Inevitable losses….They should be shared.

Shouldn’t the burden of the losses which are inevitable in present day society be
shared ,in proportion to their fault ,by all those who cause this harm? In Pennsylvania
we have already swept aside the 19th century limitations on an employer’s liability to
his [Link] have swept aside The Manufacturer’s and Contractor’s non-liablity to
third [Link] addition,in adopting the Uniform Contribution among Tort Feasor’s
Act in 1951 ,we have adopted the theory that all the persons who wrongfully cause
harm should share the cost.

Having adopted that theory ,how can we any longer cling to this one remaining
outmoded rule announced by Lord Ellen Borough 1809,particularly when it has been
discarded in it’s birth place and in practically all the English-speaking dominions?
Apportionment of Tort damages between plaintiff and defendant is now the law in
practically all the western world ,except he U.S.,and it is the law, in certain
situations,in many cases in the U.S.

I opened this with a general observation about the function of law.I now make a
second general observation.A law which is contrary to the settled convictions of the
community is a bad [Link] cannot be enforced .It breeds contempt for law in general
and it breeds contempt for judges and lawyers.

The rule that Contributory Negligence is a complete defence is contrary to the settled
convictions of the community.

In a three day conference with the committee on torts of the American Law Institute,
experts on tort law were present from various parts of the United States. An informal
poll was conducted and they were anonymously opposed to the rule of contributory
negligence as a complete defense and favoured apportionment of damages. I believe
that intelligent instructions on the apportionment of damages would produce fairer
verdict and much greater respect for the law as stated in the charge.