Plaintiffs' Conduct

• Author: John Fabian Witt
• Pages: 251-293

CHAPTER 5. PLAINTIFFS’ CONDUCT

A. Contributory and Comparative Negligence

1. Contributory Negligence

Butterfield v. Forrester, 103 Eng. Rep. 926 (K.B. 1809)

This was an action on the case for obstructing a highway, by means of which

obstruction the plaintiff, who was riding along the road, was thrown down with his horse,

and injured, &c. At the trial before Bayley J. at Derby, it appeared that the defendant, for

the purpose of making some repairs to his house, which was close by the road side at one

end of the town, had put up a pole across this part of the road, a free passage being left by

another branch or street in the same direction. That the plaintiff left a public house not far

distant from the place in question at 8 o’clock in the evening in August, when they were

just beginning to light candles, but while there was light enough left to discern the

obstruction at 100 yards distance: and the witness, who proved this, said that if the

plaintiff had not been riding very hard he might have observed and avoided it: the

plaintiff however, who was riding violently, did not observe it, but rode against it, and

fell with his horse and was much hurt in consequence of the accident; and there was no

evidence of his being intoxicated at the time. On this evidence Bayley J. directed the jury,

that if a person riding with reasonable and ordinary care could have seen and avoided the

obstruction; and if they were satisfied that the plaintiff was riding along the street

extremely hard, and without ordinary care, they should find a verdict for the defendant:

which they accordingly did....

BAYLEY J. The plaintiff was proved to be riding as fast as his horse could go,

and this was through the streets of Derby. If he had used ordinary care he must have seen

the obstruction; so that the accident appeared to happen entirely from his own fault.

LORD ELLENBOROUGH C.J. A party is not to cast himself upon an obstruction

which has been made by the fault of another, and avail himself of it, if he do not himself

use common and ordinary caution to be in the right. In cases of persons riding upon what

is considered to be the wrong side of the road, that would not authorise another purposely

to ride up against them.

One person being in fault will not dispense with another’s using ordinary care for

himself. Two things must concur to support this action, an obstruction in the road by the

fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.

Notes

1. A public policy rationale? In just a few short paragraphs, Butterfield laid out the

contributory negligence regime that would govern British and American tort law for over

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a century. Under the contributory negligence rule, a plaintiff’s negligence acts as a

complete bar to her recovery, even as against a negligent defendant. Why should that be

so? The American jurist Charles Fisk Beach sought to explain the rule:

The reasons of the rule which denies relief to a plaintiff guilty of contributory

negligence have been variously stated. The common law refuses to apportion

damages which arise from negligence. This it does upon considerations of public

convenience and public policy, and upon this principle, it is said, depends also the

rule which makes the contributory negligence of a plaintiff a complete defense.

For the same reason, when there is an action in tort, where injury results from the

negligence of two or more persons, the sufferer has a full remedy against any one

of them, and no contribution can be enforced between the tort feasors. The policy

of the law in this respect is founded upon the inability of human tribunals to mete

out exact justice. A perfect code would render each man responsible for the

unmixed consequences of his own default; but the common law, in view of the

impossibility of assigning all effects to their respective causes, refuses to interfere

in those cases where negligence is the issue, at the instance of one who hands are

not free from the stain of contributory fault, and where accordingly the

impossibility of apportioning the damage between the parties does not exist, the

rule is held not to apply.

“The true ground,” says Dr. Wharton, “for the doctrine is that, by the

interposition of the plaintiff’s independent will, the causal connection between the

defendant’s negligence and the injury is broken.”. . . [But, i]n my judgment no

more satisfactory reason for the rule in question has been assigned than that which

assumes it to have been founded upon considerations of public policy. We need

not seek for any better reason for a rule of law than that, among all the possible

rules that might be adopted, it is plainly the best—that indeed it is the only rule

upon the subject for an instant practicable.

CHARLES FISK BEACH, JR., THE LAW OF CONTRIBUTORY NEGLIGENCE 11-

13 (1885).

2. The public policy critique. Are Professor Beach’s policy considerations—when

combined with contributory negligence’s real-world application—convincing? By 1953,

their luster had dimmed to at least some juries and state legislatures. William Prosser, a

dean of the torts bar, wrote:

There has been much speculation as to why the rule thus declared found such

ready acceptance in later decisions, both in England and in the United States. The

explanations given by the courts themselves never have carried much conviction.

Most of the decisions have talked about ‘proximate cause,’ saying that the

plaintiff’s negligence is an intervening, insulating cause between the defendant’s

negligence and the injury. But this cannot be supported unless a meaning is

assigned to proximate cause which is found nowhere else. If two automobiles

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collide and injure a bystander, the negligence of one driver is not held to be a

superseding cause which relieves the other of liability; and there is no visible

reason for any different conclusion when the action is by one driver against the

other. It has been said that the defense has a penal basis, and is intended to punish

the plaintiff for his own misconduct; or that the court will not aid one who is

himself at fault, and he must come into court with clean hands. But this is no

explanation of the many cases, particularly those of the last clear chance, in which

a plaintiff clearly at fault is permitted to recover. It has been said that the rule is

intended to discourage accidents, by denying recovery to those who fail to use

proper care for their own safety; but the assumption that the speeding motorist is,

or should be, meditating on the possible failure of a lawsuit for his possible

injuries lacks all reality, and it is quite as reasonable to say that the rule promotes

accidents by encouraging the negligent defendant. Probably the true explanation

lies merely in the highly individualistic attitude of the common law of the early

nineteenth century. The period of development of contributory negligence was

that of the industrial revolution, and there is reason to think that the courts found

in this defense, along with the concepts of duty and proximate cause, a convenient

instrument of control over the jury, by which the liabilities of rapidly growing

industry were curbed and kept within bounds. . . .

No one ever has succeeded in justifying that as a policy, and no one ever will.

William L. Prosser, Comparative Negligence, 51 MICH. L. REV. 465, 468-9 (1953).

Prosser’s critique enjoyed wide acclaim in the following decades as state legislatures and

state supreme courts began softening and repealing their contributory negligence regimes,

swapping them out for various rules that allowed negligent plaintiffs to still recover some

portion of their damages.

3. Last clear chance. The most notorious of these doctrines was the so-called rule of

“last clear chance.” The rule achieved a wide variety of forms but is perhaps best

summarized as follows: “When an accident happens through the combined negligence of

two persons, he alone is liable to the other who had the last opportunity of avoiding the

accident by reasonable care.” SALMOND, LAW OF TORTS (8th ed. 1934) 480. Last

clear chance was thus an opposite to the “she started it!” defense in childhood squabbles;

it was a “she finished it!” loophole to the harshness of contributory negligence regimes.

As long as a negligent defendant had the “last clear chance” to stop an accident, a

negligent plaintiff could still recover her damages from the defendant.

One difficulty was that, on a practical level, determining exactly who had

possessed the last chance was often a tricky question. Professor Fleming James – Yale’s

great torts scholar of the first half of the twentieth century – identified this problem

nearly one hundred years ago:

[Last clear chance] is still a matter of carefully measuring times and distances in

an effort to find the last wrongdoer. The paths of a pedestrian and a street car cross at an