Contributory and Comparative Negligence: A Reappraisal

In cases of accidental harm, contributory negligence is one of the two affirmative defenses that tort law has traditionally afforded.' The contributory negligence defense came into English law at least as early as 18092 and was an integral part of American negligence doctrine as espoused in Brown v. Kendall.3 In its orthodox form, the defense completely bars the plaintiff's recovery. The last ten years have been a time of turbulence for the contributory negligence defense. Although comparative negligence is an idea that has long appealed to scholars, as late as 1968 all but seven states still recognized the defense in its traditional form.4 Suddenly, however, comparative negligence attracted significant support;5 sometime during 1974