Contributory Negligence from Planck's Constant

Photo Credit: vipresim

Sometimes, you cause your own problems. When I was a child in the 1950s, a standard doctrine of common law was that if a person was injured in part due to his or her own negligence, that is to say, their negligence "contributed" to the accident, then they would not be entitled to collect any money damages from another party who supposedly caused the accident.

One of the problems with this rule was that a badly injured person who was slightly negligent would be totally barred from collecting damages in court even against a very negligent defendant. Take the case of Joe Jones, a drunk driver speeding at 100 mph who crashes into a car driven by Mary Smith who's driving 31 in a 25 mph zone. In my day, because Mary was speeding, she would have been totally barred from collecting any money for injuries.

In 1973 New Jersey enacted the Comparative Negligence Act, providing that the fault of a plaintiff may be considered in allocating liability among the parties, but may only act as a total bar to recovery if it exceeds the fault of the defendant. In the case of Joe and Mary above, prior to the change, neither could collect damages for injuries. After 1973 only Mary could collect but not Joe, because his fault exceeded hers.

Since then, most jurisdictions in the U.S. have adopted the doctrine of comparative negligence. Only Maryland, Alabama, North Carolina, Virginia, and the District of Columbia retain contributory negligence as a complete defense to negligence.

However, this does not explain why burglars still collect money for injuries against property owners when they injure themselves during the course of their criminal behavior. Take the case of Bodine v. Enterprise High School ¹ where a burglar who fell through a skylight and injured himself collected hundreds of thousands of dollars from the owner of the skylight.

Do property owners now need to put warning posters on their property?

WARNING *** TO ALL BURGLARS

"If you are robbing me, please don't step on the skylights (you may fall through), or jump on the roof too hard (you may fall through), or break my windows without wearing gloves and protective eyewear (shattered glass may cut your hands or injure your eyes), be aware burglary can be dangerous... etc.

"In addition, and as a precautionary measure, please be advised that I have left a key under the mailbox so that you will not need to use dangerous methods to gain entrance into my home or business. The code to the alarm is 256633 so there is no need to risk electrical shock by taking my alarm box apart. For your convenience I also left the safe open to prevent any explosives damaging your hearing.

"If you would be so kind as to leave a few dollars in the safe and return the key to the mailbox, it would show your consideration for the next thief who may turn up to rob me.

If you do accidentally get injured, please contact my Attorney B.W. at 201 555-3825."

Criminals should not be entitled to injuries caused by their behavior during the commission of a crime. This country needs a tort reform ass-whooping.

Notes

(1):

Overlawyered, The burglar and the skylight: another debunking that isn’t
Ricky Bodine was a 19-year-old high-school graduate who, with three other friends (one of whom had a criminal record), decided the night of March 1, 1982, to steal a floodlight from the roof of the Enterprise High School gymnasium. Ricky climbed the roof, removed the floodlight, lowered it to the ground to his friends, and, as he was walking across the roof (perhaps to steal a second floodlight), he fell through the skylight. Bodine suffered terrible injuries to be sure, though one questions the relevance: if the school is legally responsible for burglars’ safety, it doesn’t matter whether Bodine stubbed a toe or, as actually happened, became a spastic quadriplegic.
...

Bodine sued for $8 million (in 1984 dollars, about $16 million today) and settled for the nuisance sum of $260,000 plus $1200/month for life, about the equivalent of a million dollars in conservatively-estimated 2006 present value.