Contributory or Comparative Negligence? The Difference can Affect your Florida Personal Injury Case

Do you know the difference between contributory negligence and comparative negligence? The difference can make or break your Florida personal injury case, say attorneys at David R. Linn Attorney at Law PA, one of Florida’s leading personal injury, wrongful death and accident law firms.

Contributory negligence is a defense claim that applies to cases wherein the plaintiff, through his own negligence, contributed to the harm he suffered and for which he is seeking damages. A primary example is a pedestrian who crosses a road without first looking both ways and his hit by a driver who also was acting negligently. This defense often is considered unfair because, under the current doctrine, a victim found to be as little as one percent at fault can be denied compensation entirely.

Comparative negligence differs in that it is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim. The amount awarded is based upon the degree to which the plaintiff’s own negligence is deemed to have contributed to the injury.

The doctrine of contributory negligence first appeared in an 1808 landmark English case in which the defendant, Forrester, had placed a pole near the road next to his house while repairing the home. At around 8 p.m. that night, plaintiff Butterfield later came along riding his horse at a high rate of speed, struck the pole and fell off his horse. At the subsequent personal injury trial, Butterfield’s attorney argued that he could not have seen the pole at twilight and assured the judge and jury that his client was not intoxicated. But witnesses testified that visibility at the time Butterfield rode past Forrester’s property was nearly 100 yards. The judge instructed that if a rider using reasonable care could have avoided the pole, and that if the jury found that Butterfield had not used that reasonable care, then the verdict must go to Forrester’s favor. That’s exactly how the jury ruled and Butterfield later appealed.

Comparative negligence began gaining widespread acceptance around the 1960s. An early example is Li v. Yellow Cab Co., in which both the plaintiff and defendant were found to have been driving negligently. The defendant’s employee was traveling at 30 miles per hour and entered an intersection on a yellow light. Meanwhile, plaintiff Li made a left turn across the southbound lanes of the street. The trial court found for the defendant on the grounds that California at the time was a contributory negligence jurisdiction, barring recovery by Li based upon her own contributory negligence. Li appealed and the Supreme Court of California reversed the trial court’s decision, urging state legislators to adopt comparative negligence over the harsh, all-or-nothing doctrine of contributory negligence.

David R. Linn, Florida personal injury attorney since 1985, can help determine whether and how your case might be affected by contributory or comparative negligence. Contact the Steinberg and Linn offices in Port Charlotte or Fort Myers via phone or our online contact form.

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