In many of our cases we are faced with a variety of contributory negligence allegations either as jury issues or implied. Learning to deal with these claims is an important part of representing plaintiff clients. The following is a primer of ideas about dealing with this issue.. The laws of the different states often vary regarding both evidence of contributory negligence and the effect of contributory negligence as a bar or reduction in the damages. It’s important to check the law of the state where your case is pending on this legal issue. This material relates to the laws of the state of Washington

Washington law, for many years, followed a strict contributory negligence rule that barred the plaintiff from recovering anything if contributory negligence to any degree was proven. Even one percent contributory negligence was a bar to recovery. But, our law changed to one of comparative negligence as set out in RCW 4.22.005 “Effect of Contributory Fault” which provides:

“In an action based on fault seeking to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery…”

The Washington Pattern Jury Instruction (WPI) tells the jury:

“Contributory negligence is negligence on the part of the person claiming injury or damage that is a proximate cause of the injury or damage claim.”

WPI 11.07 tells the jury that: “If you find contributory negligence, you must determine the degree of negligence, expressed as a percentage, attributable to the person claiming injury or damage. The court will furnish you a special verdict form for this purpose. Your answers to the questions in the special verdict form will furnish the basis by which the court will apportion damages, if any.”

Where there is a preponderance of evidence of contributory negligence on the part of the plaintiff, the jury involves:

  1. Applying a standard of ordinary care to the conduct of the plaintiff in determining whether or not the plaintiff was in fact negligent.
  2. Determining whether contributory negligence, where it exists, was a proximate cause of the plaintiff’s own injuries
  3. Comparing the negligence of the defendant to that of the plaintiff and expressing the negligence of each in percentages in assessing 100% of the total negligence by both (as required by RCW 4.22.005)

The Legal Consequence of Finding Contributory Negligence

WPI 11.07 tells the jury after assessing whether there is negligence on the part of the plaintiff, they are to determine the percentage on the verdict form. The only other thing this instruction tells them about the effect of doing so is: “your answers to the questions in the special verdict form will furnish the basis by which the court will apportion damages if any.” There is no explicit statement in the instructions given to the jury which makes it clear to them the idea damages will be reduced by the percentage of contributory negligence they determined should be assessed against plaintiff.

To avoid this disadvantage a simple solution would be to tell the jury they are to fill in the blank for the full number of damages, if any, and that amount will be reduced by the court using the percentage of contributory negligence that they might find existed. There can’t be any prejudice to the defendant it disclosing this fact. This is a potential issue that needs to be clarified before jury selection and opening statement with the court. 

Plaintiff’s Approach to the Contributory negligence Issue

A trial is, at its essence, of impressions made and not a test of logical thinking. In this process jurors’ observe all of the participants for their impression of who to trust and who is credible. They are not fully confident about who to trust in the trial proceedings because they perceive that everyone has a different self-interest.

In forming their impression of the case, jurors in general are looking for someone in the court room who appears to them to have more credibility than other participants. In this contest for credibility and trust from the jury, the most powerful tool is authenticity of the person and total truthfulness in presentation. We believe people we trust. We trust people who are truthful and open. We are distrustful of people who are guarded and unwilling to acknowledge faults in themselves or their client’s case. Therefore, if contributory negligence is either an issue going to the jury or one the jurors will be bothered by, the issue must be treated truthfully with the jurors. Don’t let it be the “elephant in the room” and ignored. Face it openly.

The first question for the plaintiff’s attorney is whether or not there is sufficient evidence that a jury is likely to find some contributory negligence. If not, one must acknowledge the issue exists and proceed to defend the client  against the claim. But, if  there is a likelihood of a jury finding a percentage of fault, it must be dealt with honestly as an existing issue for the jury.

If the negligence is going to be conceded by plaintiff that has to be discussed in jury selection, be discussed in opening statement, covered in witness examination and dealt with in final argument. The first and most important rule of a great plaintiff’s attorney is to tell the truth and be an honest person.

In the case being used for illustration below, a worker on a billboard sign using a metal pole struck a nearby powerline resulting in amputation and other injuries. The plaintiff, Jeff Kuntz, had some degree of contributory negligence. I resolved to concede that fact from the start of the trial, but took the position the percentage of his negligence was minuscule compared to the defendants. Remember, in Washington, the percentage of plaintiff’s contributory negligence is determined by comparison with defendant’s conduct. In fact, the jurors agreed with me and found the suggested percentage of under 10%.

In the presentation of the issue of comparative negligence here are the important factors to  keep in mind. Each of these should be discussed beginning in jury selection through opening statement examination of witnesses and at the time of final argument:

  1. The defense claims the plaintiff was negligent
  2. Only negligence that is a proximate cause of plaintiff’s injuries is to be considered
  3. Defendant has the burden of proving this contributory negligence and proximate cause.
  4. The jury must compare any negligence of the plaintiff to any negligence of the defendant
  5. The jury must determine the percentage of negligence each contributed to the total fault
  6. The jury is to determine full damages due the plaintiff irrespective of any negligence on the part of plaintiff.
  7. The court will use the percentages of negligence in apportioning damages.

What follows are slides supporting the concepts you want the jury to understand. The first step is to make clear the law regarding contributory negligence.

The concept and application of degrees of negligence is difficult to grasp as well as apply to human events. However, if we talk about “ordinary care” in the abstract it is even more confusing to the average person. We understand ordinary care best when we compare it to the other legally recognized duties: (1) reckless (2) willful and wanton hand (3) the highest duty of care. A visual chart like this can be very helpful in communicating concept to jurors.

The state of Washington law applies a concept of “comparative” negligence and not one of strict negligence. That means that in evaluating a question of negligence on the part of the party suing one determines the percentage by comparison with the conduct of the defendant or defendants. This slide makes that point.

I have found that a chart like the one below is a very powerful visual for most jurors to understand the function of not only comparing, but determining the percentage of each party involved in the issue. Charts like this are helpful in opening statement examination of witnesses and of course final argument.

Most cases are made more easily understood by simple timelines or chronologies. This very simple diagram outlined a series of events over a seven-year period which led to the clients injury. A time chart like this can also be helpful in examining witnesses to orient the jury as to how an event fits into the overall chronology. In this case, its primary use was with regard to contributory negligence facts.

I used charts of key testimony on the issue of contributory negligence. These charts are potentially usable in opening statement, examination of witnesses and of course final summation as well. Here the chart summarize the plaintiff’s key testimony on the specific claims being made by defendants that he was contributorily negligent. They involved (1) requirements workers were to follow the rules under a law that had been passed (2) plaintiff’s ignorance that powerlines had been moved (3) defendants claim that the rod which contacted the powerline was supposed to been used in a different way and (4) a claim by the employer if non-electrical conductive rods required for the job weren’t available the other metal rods should not be used.

This chart was used as a brief summary chart of the key points we were making to refute the contributory negligence claim.

These charts are a selected few of what was actually used at trial. My idea was to generally try to have a visual chart for each of the important points in the trial and for any concept that might need simplification.

Final Summation Ideas

Summation is essentially a repeat of all of the above regarding comparative negligence. Use jury instructions to explain and emphasize the law. Use the exhibits to illustrate. Emphasize a comparison of which of the parties had the knowledge, experience and ability to have prevented the injury from happening.

Here are some ideas you might consider for final summation:

Comparative negligence is not a question of what a juror personally would or might have done. That’s because you might not be an average person, but instead you may be a B or an A student with higher standards of conduct. The issue is what an average person should have done. The law recognizes that people are not perfect and don’t always do the perfect  thing. They are not required to be perfect. Here are additional points.

  • Consider this paper represents 100% of a perfect person. Now tear a little corner off a piece of paper and that represents 1%. There are no people who are 99% perfect and then there are ordinary people and all the law requires is ordinary care.  If you tear off 60% you are below ordinary care and the average person’s conduct. It is important to remember there are no perfect people and we are only obligated to exercise average or ordinary care. The law is not unreasonable.
  • Who was in the best position to know? Who had the years of medical education and who spent all their time on this subject compared to the patient’s first experience
  • Who had the knowledge and experience?
  • Knowledge carries with it the duty to inform and protect against harm to others
  • The greater the knowledge & more serious the harm, the greater the obligation to inform and protect
  • This was totally preventable, avoidable and inexcusable.
  • There was a simple and reasonable alternative the defendant ignored

Remember, meet the hard issues in your case head on, openly and truthfully.

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