Contributory and Comparative Negligence
Key point 10-16.01. Under the principle of comparative negligence, a church is liable only to the extent of its percentage share of fault for an accident or injury.
Contributory negligence is conduct on the part of a person injured through the negligence of another that itself falls below the standard to which a reasonable person would conform for his or her own safety and protection. Historically, the contributory negligence of an accident victim operated as a complete defense to negligence. Accordingly, accident victims who themselves were negligent could be denied any damages. To illustrate, a woman who was injured when she fell down the back stairway of a church while carrying a large ice chest was denied any monetary damages on the basis of her own contributory negligence. Richard v. Church Insurance Company, 538 So.2d 658 (La. App. 1989). The court concluded that the member "loses because she was contributorily negligent. [T]he fact is she stepped through a doorway, with her vision at least partially obscured by the ice chest she carried, missed her step, and fell. Reasonable prudence required her to be more careful. … She had no right to assume that there was a place to land her foot because she could not see where she was going." The absence of a handrail and the width of the top step in no way contributed to the member's injuries, the court concluded.
Most states have attempted to lessen the severity of the rule denying any recovery to an accident victim who was contributorily negligent through the adoption of comparative negligence statutes. Under the so-called pure comparative negligence statutes, accident victims whose contributory negligence was not the sole cause of their injuries may recover damages against another whose negligence was the primary cause of the accident, but their monetary damages are diminished in proportion to the amount of their own negligence. Under a pure comparative negligence statute, victims may recover against a negligent defendant even though their own contributory negligence was equal to or greater than the defendant's negligence.
Many other states have adopted the equal-to or greater-than rule or the fifty-percent rule. Under these statutes, accident victims whose contributory negligence is equal to or greater than the defendant's negligence are totally barred from recovery. But, accident victims whose contributory negligence is less than the defendant's negligence may recover damages, although their damages are diminished in proportion to the amount of their own negligence.
Other states permit a plaintiff to recover damages for the injuries caused by a negligent defendant if his own contributory negligence was slight in comparison to the negligence of the defendant. To illustrate, a woman was injured when she was struck by a church-owned vehicle that was being driven in a negligent manner. The woman sued the church, and a jury found the church negligent, assessing damages at $300,000. However, the jury also found that 80 percent of the woman's injuries were attributable to her failure to wear a seat belt, and accordingly her damages were reduced by 80 percent (or $240,000) to a total of $60,000. At the trial, the church established that the woman's car had a seat belt. The woman herself testified that she was thankful not to have worn the belt because of her belief that a seat belt would have caused additional injuries. Smith v. Holy Temple Church of God in Christ, Inc., 566 So.2d 864 (Fla. App. 1990). The ruling was reversed on appeal on the basis of a technicality.
• A Colorado court ruled that a jury erred in finding that a young boy who had been molested by his pastor was partly at fault. DeBose v. Bear Valley Church of Christ, 890 P.2d 214 (Colo. App. 1994). The jury found the boy to be 4 percent at fault, and reduced the damages it awarded the boy by this amount under the principle of comparative negligence. The court observed, "Here, there was no evidence that would support a finding that the minor unreasonably subjected himself to the risks associated with [the pastor's] counseling. The minor was only seven when he entered counseling, and he continued to see [the pastor] until the time he entered middle school. He entered into the counseling relationship only at [the pastor's] behest and at his mother's direction. Indeed, there was testimony from both the minor and the mother that he was often quite reluctant to see [the pastor] and had to be persuaded to do so. The minor also testified that [the pastor] told him that the counseling was confidential and that the minor should not discuss with others the contents of their sessions. Finally, [the victim's] expert opined that, in situations involving the abuse of a child by an adult in a position of trust, it is common for the child not to report it to others. The church offered no testimony to contradict this view, nor did it offer any testimony respecting the reasonable standard of conduct of a child of the minor's age in such circumstances. We conclude, therefore, that the evidence failed to establish, as a matter of law, any negligence on the part of the minor."
• A Pennsylvania court ruled that a church and diocese could be liable for a priest's acts of child molestation. The church defendants argued that the trial court erred in not allowing the defense of comparative negligence. The theory of comparative negligence assigns damages to defendants in proportion to their degree of fault. For example, had the jury determined the priest to be 80 percent at fault, and the church defendants only 20 percent, the church defendants would only have been liable for 20 percent of the jury's verdict. The court stressed that the theory of comparative negligence only applies to negligence. It then observed: "For several reasons, we share the trial court's concern about entering into a comparison of the parties' respective negligence in this case. First, it is problematic that [the priest's] conduct is central to the negligent acts alleged on the part of the [church defendants]. In the context of liability insurance coverage … pedophilic sexual abuse is intentional conduct on the part of the abuser, as a matter of law, and is not negligent conduct. … [S]ince [the priest's] acts of pedophilic sexual molestation were intentional, the doctrine of comparative negligence has no application here. The acts that directly caused the harm are, in essence, what must be compared. [The priest's] intentional act and the alleged negligence of [the victim] are not equal forms of conduct. … [C]omparative negligence is only an appropriate consideration in matters where there is negligence on the part of both the plaintiff and the defendant involved in causing the harm that results, not where the conduct of one is willful." Hutchison v. Luddy, 2000 WL 1585672 (Pa. 2000).