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The Philosophical Foundations of Tort Law$
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David G. Owen

Print publication date: 1997

Print ISBN-13: 9780198265795

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198265795.001.0001

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Contributory Negligence: Conceptual and Normative Issues

Contributory Negligence: Conceptual and Normative Issues

(p.461) Contributory Negligence: Conceptual and Normative Issues
The Philosophical Foundations of Tort Law

Kenneth W. Simons

Oxford University Press

This chapter examines conceptual and normative issues concerning contributory negligence and places them within the broader conceptual, doctrinal, and normative framework of tort law. It assesses the extent to which the parties’ moral claims ground their legal rights and remedies, without careful regard to practical and institutional constraints. However, some of the analysis might suggest reasons for altering or refining current legal doctrine. For simplicity, the chapter uses the term ‘contributory negligence’ as a shorthand for either traditional contributory negligence, which was a complete bar to recovery, or modern comparative negligence, where the plaintiff’s negligence reduces but need not bar recovery. The concept of injurer fault does entail that the injurer should have acted otherwise, since injurer fault means conduct that is deficient relative to a standard of reasonable care.

Keywords:   contributory negligence, tort law, claims, rights, comparative negligence, plaintiff, recovery, injurer fault, reasonable care

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