Contributory Negligence Per Se

June 21, 2009

As most of my readers are aware, Alabama is a contributory negligence state. “Contributory negligence is  negligence on the part of the plaintiff that proximately contributed to the alleged injury.”  Alabama Pattern Jury Instructions 30.00.  In suits where contributory negligence is asserted as an affirmative defense, the jury is instructed that “if you are reasonably satisfied from the evidence that the plaintiff was guilty of contributory negligence, the plaintiff cannot recover for any simple negligence of the defendant.”  APJI 30.02.

In my experience, juries rarely use contributory negligence to bar a plaintiff from recovery, but more often apply a comparative negligence analysis, and will mitigate their verdict with the plaintiff’s own negligence.

Negligence, as well as contributory negligence, is almost always an issue of fact for the jury.  In occasional instances, however, the court is allowed to find that a plaintiff was guilty of contributory negligence as a matter of law, and take the issue from the jury.

The Alabama Supreme Court recently held that a builder’s reliance on its geotechnical engineer did not amount to contributory negligence as a matter of law, as the geotech, Qore, argued.  In Qore, Inc. v. Bradford Building Co., __ So.2d __ (Ala. June 12, 2009), the Court considered a foundation defect case in which Qore performed construction materials testing (CMT) for the builder, but failed to locate an area on the site, which had been a gasoline station, which contained gas tank pits.  The area was not properly backfilled and compacted, and as a result, the new building’s foundation cracked.

The builder, Bradford, sued Qore and obtained a judgment in the amount of $196,937.  On appeal, Qore argued that Bradford should have known that it had failed to locate the tank pits, and that Bradford’s constructive knowledge amounted to contributory negligence as a matter of law.

To establish contributory negligence as a matter of law, a defendant must demonstrate that the plaintiff put himself at risk of being injured and that the plaintiff had a conscious appreciation of that risk at the moment the incident occurred.  Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 860-861 (Ala. 2002).

Qore argued that a Bradford employee had observed the improper work, and had testified that “in hindsight,” it had been a mistake to rely on Qore’s testing. The Court held that this evidence did not prove that as a matter of law, Bradford had consciously placed itself at risk of being harmed.

In  a few previous opinions, the Court has determined that a plaintiff was contributorily negligent as a matter of law.  In Serio v. Merrell, Inc., 941 So.2d 960 (Ala. 2006), the plaintiff stopped her vehicle at a “T” intersection.  Her direction of travel was controlled by a stop sign, and vehicles on the intersecting highway had the right-of-way.  After stopping, the plaintiff looked both ways and proceeded into the intersection, where her vehicle was struck by a gravel truck approaching from her left.  The gravel truck was traveling 60 mph in a 45 mph speed zone.

In affirming summary judgment for the defendant, the Court held:

While the question of contributory negligence is normally one for the jury, if the facts are such that all reasonable people would logically have to reach the conclusion that the plaintiff was contributorily negligent, then contributory negligence may be found as a matter of law.  Merrell made a prima facie showing that Serio was contributorily negligent, entitling it to summary judgment based on that defense, by establishing that she pulled into the path of the large oncoming truck when she could not have failed to see it if she had looked to her left before, or as, she moved forward into the intersection.  Her own testimony established that she consciously appreciated the danger posed by pulling onto a highway on which the vehicles traveling have the right-of-way, without first making sure that no vehicle was approaching too closely.  She admitted that there was no reason she could not have seen the tractor-trailer truck before she pulled out, given the prevailing conditions.  Serio at 964-965.

had observed CDG and Milam improperly backfilling the
tank pits and that Cahoon testified that, “in hindsight,” it
had been a mistake to trust CDG and Milam to properly compact
the soil in the tank pits and to rely on QORE to verify that
the soil in the tank pits had been suitably compacted.