Generally, negligence on the part of a decedent contributing to his or her death bars recovery by the beneficiaries. Moreover, it is a defense against beneficiaries whose negligence proximately contributed to the death sued upon. It is also a defense against parents and other custodians seeking to sue for the wrongful death of a child. Pursuant to the Uniform Law Commissioners’ Model Survival and Death Act, the conduct of a survivor which contributed to death is a defense to the survivor’s recovery in death actions. The negligence of the personal representative, who is not a beneficiary but who brings the action, does not affect the matter or amount of recovery where the cause of action belongs to the beneficiaries.
The defense of contributory negligence is not available when the cause of action is based upon wanton negligence[i]. Contributory negligence bars an action based upon ordinary negligence. Contributory negligence has no application where defendant is guilty of willful and wanton negligence. Such negligence incurs liability irrespective of contributory negligence. Willful and wanton negligence is the reckless disregard of the safety of a person or property of another by failing to exercise ordinary care to prevent the impending injury after discovering the peril[ii].
The defense of contributory negligence is grounded on the assumption that a court of law cannot apportion the damages arising from an injury caused by the negligence of two parties. The law will not undertake to apportion the consequences of concurring acts of negligence. Therefore, when injury is caused by the concurring negligence of two or more persons, each is liable for all the damages thus caused. Moreover, when damage is caused by the concurring negligence of the plaintiff and defendant, the former cannot recover at all, for the same reason[iii].
Where contributory negligence has previously been a complete defense, it is supplanted by the doctrine of comparative negligence. In such cases, contributory negligence will not bar recovery. It shall reduce the total amount of the award in the proportion that the claimant’s contributory negligence bears to the total negligence that caused the damage. The trier of fact must consider both negligence and causation in arriving at the proportion that negligence and causation attributable to the claimant bears to the total negligence that was a substantial factor in causing the damages[iv].
The general rule is that the contributory negligence of one beneficiary of an action for wrongful death is not available as a defense against other beneficiaries who are not guilty of such negligence[v]. The last clear chance applies only if the defendant actually knows of the plaintiff’s perilous position. It is insufficient to show merely that the defendant should have known of the plaintiff’s peril[vi]. The correct rule regarding the question of contributory negligence is that the procedure followed in the forum is controlling when the question is whether the court or the jury shall pass upon the problem[vii].
If evidence of capacity is introduced, the trial judge must determine if such evidence is sufficient so that reasonable men might disagree concerning the question of whether the child had the capacity to perceive the risk and avoid the danger to him/her. If the answer is in the affirmative and if there is further evidence that the child did not act in a manner which would be expected of a child of similar age, judgment and experience, then the question of contributory negligence must be submitted to the jury. The trial court must instruct the jury that there is a presumption of incapacity and that first it is to determine whether there is such evidence sufficient to overcome the presumption of incapacity and to render the child capable of being contributorily negligent. Then, if the jury finds that the child is capable, it must determine whether the child was contributorily negligent under the facts of the particular case[viii].
The fault of the plaintiff-beneficiaries does not bar them from being entitled to bring a wrongful death action. It is simply a matter for the jury to consider in determining the fault of the parties, even though the plaintiff-beneficiaries are ultimately determined to be 100 percent at fault[ix]. A recovery for wrongful death will not be allowed when the negligence of the sole beneficiary of any wrongful death recovery proximately contributed to the death for which recovery is sought[x].
In most jurisdictions, the negligence of parents or others in loco parentis cannot be imputed to a child to support the plea of contributory negligence when the action is for his benefit. The contributory negligence of a parent may be shown in evidence in bar of the action, when the action is by the parent in his own right or for his benefit, as when he sues as an administrator, but is also the beneficial plaintiff or cestui que trust of the action as distributee of the child’s estate, although the action is brought by one parent and the negligence was that of the other[xi].
In some jurisdictions, the law precludes recovery by either parent for the wrongful death of a child if the negligence of either parent contributed to the death[xii]. A husband’s contributory negligence may not be imputed to his wife so as to preclude her recovery against a third person who has caused her injury[xiii]. The rule regarding contributory negligence presupposes sufficient intelligence to know the existence of danger. Negligence cannot be imputed to an infant two years of age[xiv]. In all cases whatsoever, the defense of contributory negligence or assumption of risk shall be a question of fact and shall be left to the jury[xv].
[i] Consolidated Church Co. v. McCord, 171 Tenn. 253 (Tenn. 1937)
[ii] Hinkle v. Minneapolis, A. & C. R. R. Co., 162 Minn. 112 (Minn. 1925)
[iii] Herrell v. St. Louis-San Francisco Ry. Co., 324 Mo. 38 (Mo. 1929)
[iv] Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984)
[v] Lindley v. Sink, 218 Ind. 1 (Ind. 1940)
[vi] Harden v. United States, 688 F.2d 1025 (5th Cir. Ga. 1982)
[vii] Singer v. Messina, 312 Pa. 129 (Pa. 1933)
[viii] Bush v. N.J. & N.Y. Transit Co., 30 N.J. 345 (N.J. 1959)
[ix] State ex rel. Griffin v. Belt, 941 S.W.2d 570 (Mo. Ct. App. 1997)
[x] Holman v. McMullan Trucking, 684 So. 2d 1309 (Ala. 1996)
[xi] Flagstaff v. Gomez, 23 Ariz. 184 (Ariz. 1921)
[xii] Keener v. Morgan, 647 F.2d 691 (6th Cir. Tenn. 1981)
[xiii] White v. Yup, 85 Nev. 527 (Nev. 1969)
[xiv] Walters v. C., R. I. & P. R. Co., 41 Iowa 71 (Iowa 1875)
[xv] Hopkins v. Kurn, 351 Mo. 41 (Mo. 1943)