Contributory Negligence: Conceptual and Normative Issues

Kenneth W. Simons

in The Philosophical Foundations of Tort Law

Published in print July 1997 | ISBN: 9780198265795
Published online March 2012 | e-ISBN: 9780191682971 | DOI:
Contributory Negligence: Conceptual and Normative Issues

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This chapter examines conceptual and normative issues concerning contributory negligence and places them within the broader conceptual, doctrinal, and normative framework of tort law. It assesses the extent to which the parties’ moral claims ground their legal rights and remedies, without careful regard to practical and institutional constraints. However, some of the analysis might suggest reasons for altering or refining current legal doctrine. For simplicity, the chapter uses the term ‘contributory negligence’ as a shorthand for either traditional contributory negligence, which was a complete bar to recovery, or modern comparative negligence, where the plaintiff’s negligence reduces but need not bar recovery. The concept of injurer fault does entail that the injurer should have acted otherwise, since injurer fault means conduct that is deficient relative to a standard of reasonable care.

Keywords: contributory negligence; tort law; claims; rights; comparative negligence; plaintiff; recovery; injurer fault; reasonable care

Chapter.  13157 words. 

Subjects: Jurisprudence and Philosophy of Law

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