Philosophical Foundations of Tort Law

By David G. Owen | Go to book overview

Contributory Negligence: Conceptual and Normative Issues

KENNETH W. SIMONS*

Peter, a pedestrian, negligently crosses a street without carefully checking the vehicular traffic. Doris, a motorist, negligently speeds and strikes Peter, causing him injuries. In Anglo-American jurisdictions, Peter's recovery against Doris will likely be reduced, if not eliminated, under the doctrine of contributory (or comparative) negligence. And it might seem obvious that a plaintiff who is 'at fault' should not fully recover against a tortious defendant. But the grounds for that conclusion are not at all obvious, once one considers the following problems.

First, in saying that Peter is negligent, do we mean that he acted as he should not have? (That, after all, is ordinarily what we mean when we conclude that Doris is negligent.) Or do we mean only that he should incur some of the costs of his conduct? That is, even if it is not the case that he should have acted differently, perhaps he should forfeit some of the legal damages to which he would have been entitled had his conduct not contributed to his own harm. (This, I will argue, is the important but neglected concept of plaintiff 'strict liability' or strict responsibility.)

Secondly, is the substantive criterion of contributory fault essentially the same as the criterion of fault towards others? And, at a deeper level, are victim and injurer fault based on similar rationales? For example, fault towards others might reflect the actor's egoism and insufficient concern for the interests of others. Does self-regarding fault reflect a similar lack of concern for others? Yet here, all of the relevant interests affected are the victim's. In what sense, then, does contributory negligence reflect insufficient concern? Alternatively, consider a utilitarian criterion of fault. Does such a criterion apply similarly to other-regarding and to self-regarding harm? (I will suggest serious reasons for doubt.) More promising is a moral parity approach, holding victims to the same standard to which they hold injurers, but this approach, too, has its difficulties. In the end, should we give

____________________
*
Professor of Law, Boston University School of Law. I thank Ron Cass, Jane Cohen, Mike Conrad, Betsy Foote, Clay Gillette, Wendy Gordon, Steve Marks, Chris Marx, Liam Murphy, David Owen, Mark Pettit, Gary Schwartz, David Seipp, Kate Silbaugh, and participants in the Boston University faculty workshop for helpful advice. For a fuller analysis of some of the issues discussed in this essay, and for an examination of additional issues, see Kenneth W. Simons, "The Puzzling Doctrine of Contributory Negligence", 16 CARDOZO L. REV. 1693 ( 1995).

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