In Defense of Contributory Negligence

The contributory negligence rule in tort law absolves an injurer from liability if the victim also was negligent. It has been replaced in many jurisdictions by a comparative negligence rule that attempts to assign liability in proportion to the lack of care. The change was originally motivated on equity grounds. However, it has recently been claimed that comparative negligence can encourage more appropriate levels of care. We argue that comparative negligence is likely to be less efficient than contributory negligence. In addition, the most efficient contributory negligence rule may also promote equity in the form of equal treatment of individuals in equivalent circumstances.