If the defendant in a personal injury case based on negligence can prove that the plaintiff was guilty of any negligence that contributed to the accident or his injury, then the plaintiff is barred from recovery. The negligence of the plaintiff is called “contributory negligence” and under Alabama law is a complete bar to recovery. Strict application of the contributory negligence defense can lead to very harsh results in cases where the plaintiff was only slightly negligent for a few seconds compared to a defendant who may have known for years that its product was unsafe.

Other states have comparative negligence. If the jury finds that the plaintiff and the defendant were both negligent, the jury assigns a percentage to the plaintiff and a percentage to the defendant, and the damage verdict is reduced by the percentage assigned to the plaintiff. For example, the jury may find that the plaintiff’s negligence was 25% of the cause of the accident and that total damages are $1,000,000. The $1,000,000 verdict would be reduced by 25% so that the defendant paid the plaintiff $750,000. The result is much fairer than applying Alabama contributory negligence law and returning a verdict in favor of the defendant.

Alabama should change its contributory negligence law and adopt comparative negligence. This would prevent jurors from having to apply contributory negligence to reach an unfair result or from having to ignore the law to reach a fairer result.

Lloyd Gathings