Arguing defense of plaintiff contributory or comparative negligence

Arguing defense of plaintiff contributory or comparative negligence

We usually face a defense that our client, the plaintiff, was himself or herself negligent and that their own negligence was the cause of the injuries they are suing over. This is a common defense we have to deal with. I’ve collected a few arguments on that subject and here isa collection ofthem.


  • Ordinary care means average – a C student – not an A student. The law does not require the plaintiffto be an A student in their conduct, only an average C student
  • It is not a question of what you might have done, because you might not be an average person. You might be an A student. It’s what the average person should have done. The law recognizes that people are not expected or required to be perfect

Moe Levine was a great trial lawyer from New York. His wonderful and expressive vocabulary along with his oratorical skills made him a seminar favorite for lawyers all over the country. Trial Guides [] has some materials available about Moe and his arguments. Here is one thought of his about contributory negligence.

Moe Levine:

Let’s assume thispiece of paperhere on the easil represents 100% of a normal human being. Let’s say this little piece from the corner I’ve torn off is the conduct of a person suing. This piece isless then 1% of the whole leaving 99%. The law does not require us to be 99% perfect and there are no 99% perfect people. All that is required is ordinary care. If you tear this much off this piece of paper, let’s say it is49% representing the conduct of a plainhtiff. It is still within average conduct.If you tear off 60%they are nowbelow average. But, all that is required is average care and average conduct.It is important to remember there are no perfect people nor does the law require us to be perfect. We are only obligated to exercise average or ordinary care. The law is not unreasonable.

Michael Musmanno was a plaintiff’strial lawyer in Pennsylvania who later served on their Supreme Court. His trial skills were amazing and his written opinions unique enough that just the dissenting opinions alone were so well written that they were collected and published as book. Here are some excerpts from his dissenting opinions about contributory negligence:

  • Habit is stronger then memory. Repetitive routine will overcome any momentary spark of fleeting recollection in the face of other distractions. That is normal for people.
  • A public bus is like a Noah’s ark. It must accept all species, sizes and shapes of passengers. It owes the same responsibility to dwarfs as it does to giants
  • When driving through any locality where children are known to be in movement, one must drive the care and caution of walking through a children’s nursery. Every adult knows children are enthusiastic, impulsive and given to sudden, unanticipated actions.
  • A pedestrian is not required to be illuminated whereas the motorist is obligated to have adequate lighting to see pedestrians. A pedestrian does not have to wait forever to cross a street. Nor is the pedestrian required to live on a curb.
  • What is contributory negligence? It simply means doing what one should not do or failing to act as one should. The standard to be applied is that of a reasonably prudent person. What is that person? It is not a perfect person, with perfect vision, hearing perspective, intuition, foresight and hindsight. It is not a composite of Einstein, Lindbergh, and Admiral Byrd. A reasonably prudent person is one who with ordinary faculties is judged by the average person.
  • Faith in one’s fellow man is not negligence. The average person going about his affairs with reasonable care is not required by law to approach every phase of his daily routine with suspicion and distrust.
  • Claiming the pedestrian should have seen the hole islike saying a hole into which a pedestrian walks caused no harm because it was the fall that broke his neck. Even a tiger will not harm anybody who stays away. An unguarded elevator shaft will not injure anyone unless he falls into the shaft.

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