Paper On The Details Of Contributory Neglience Finance 2244 Essay

1599 words - 7 pages

Contributory Negligence
Delmarius Gilliam
East Carolina University
Contributory Negligence
Question (a)
Contributory negligence is a common law rule (instead of a statutory rule) that serves as a defence against a negligence suit. Pursuant to the Restatement (Second) of Torts, the concept of contributory negligence is defined as a plaintiff’s conduct that falls short of a reasonable standard of self-protection expected of the plaintiff himself, and if this conduct or omission of the part the plaintiff constitutes a proximate cause to the damages suffered by the plaintiff, then the plaintiff will be barred from bringing a negligence suit against the defendant, even though the plaintiff’s fault is small and the defendant’s conduct is comparatively large (Gardner, 1996). The following cases shed light in greater detail the actual application, meaning and effects of a doctrine of contributory negligence.
The origin of doctrine of contributory negligence can be tracked way back to an early English case in 1809, namely, Butterfield v. Forrester (Gardner, 1996). In this case, the court rejected a plainitff’s claim when a defendant caused an obstruction to be present on a road that, in part, led to an accident causing injuries to the plaintiff. In arriving at this decision, the court held that one’s failure to exercise care does not dispense with another’s exercising reasonable care for himself (Gardner, 1996). As far as the United States is concerned, the first contributory negligence case in the country was Smith v. Smith 1824 (Gardner, 1996). More specifically in the state of North Carolina, the Supreme Court first applied (not just making references in dictum) the concept of contributory negligence in the case of Morrison v. Cornelius 1869 (Gardner, 1996). In this case, the plaintiff brought a negligence claim against the defendant because the latter’s failure in properly providing equipment storage services caused damages to the plaintiff’s property. Rejecting the plaintiff’s claim, the Supreme Court of North Carolina held, inter alia, that every person who had an ability to care for himself but failed to do so will be guilty of contributory negligence, and will not be eneitled to make a claim against a defendant (Gardner, 1996).
Question (b)
As far as the plaintiff’s attorney is concerned, he may avoid the rule by arguing the last clear chance doctrine. This doctrine was adopted by the North Carolina Supreme Court in the case of Gunter v. Wicker 1881 (Gardner, 1996). To successfully invoke this doctrine, the plaintiff’s counsel shall prove the following elements (Gardner, 1996). First, the plaintiff has, due to his own negligence, caused harm to himself. Second, the defendant sees and is aware of the position of the plaintiff. Third, the defendant should have discovered the plaintiff’s condition in time to prevent injuries to the plaintiff. Fourth, despite such notice, the defendant fails or refuses to take reasonable care to avoid injuries...

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