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46 U. Rich. L. Rev. 359 (2011-2012)
Virginia Should Abolish the Archaic Tort Defense of Contributory Negligence and Adopt a Comparative Negligence Defense in Its Place

handle is hein.journals/urich46 and id is 361 raw text is: VIRGINIA SHOULD ABOLISH THE ARCHAIC TORT DEFENSE OF CONTRIBUTORY NEGLIGENCE AND ADOPT A COMPARATIVE NEGLIGENCE DEFENSE IN ITS PLACE Peter Nash Swisher * I. INTRODUCTION Contributory negligence is conduct on the part of the plaintiff, contributing as a proximate cause to the tortuous harm the plain- tiff has suffered, which falls below the standard of care to which the plaintiff is required to conform for his or her own protection.' When contributory negligence is found, it constitutes a complete defense to the plaintiffs negligence cause of action, even though the defendant's negligence may have greatly exceeded the plain- tiffs negligence.' This rather severe legal doctrine that the plaintiffs contributo- ry negligence would constitute a complete defense to the plaintiffs negligence cause of action-even though the defendant's conduct may be far more negligent than the plaintiffs conduct-was first enunciated in the 1809 English case of Butterfield v. Forrester.3 In Butterfield, Lord Ellenborough, a controversial and tempestuous Tory judge in his own day, cited no supporting authority, nor gave * Professor of Law, University of Richmond School of Law; J.D., 1973, University of California, Hastings College of Law; M.A., 1967, Stanford University; B.A., 1966, Amherst College. 1. E.g., Rose v. Jaques, 268 Va. 137,149, 597 S.E.2d 64, 71 (2004); Lerwill v. Regent Van & Storage, Inc., 217 Va. 490, 493-94, 496, 229 S.E.2d 880, 882-84 (1976); Char- lottesville Music Ctr., Inc. v. McCray, 215 Va. 31, 37, 205 S.E.2d 674, 679 (1974); RESTATEMENT (SECOND) OF TORTS § 463, at 506-07 (1965). 2. See, e.g., Burroughs v. Keffer, 272 Va. 162, 167-68, 630 S.E.2d 297, 300-01 (2006); Litchford v. Hancock, 232 Va. 496, 499, 352 S.E.2d 335, 337 (1987); Fein v. Wade, 191 Va. 203, 209-10, 61 S.E.2d 29, 31-32 (1950). 3. (1809) 103 Eng. Rep. 926 (K.B.) 926-27; 11 East 60, 60-61. 359

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