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Overview of the Defenses to Negligence: Contributory Negligence

Updated: Jun 26, 2020

Tractor pulling hayride in front of silos (Photo by Edwin Remsberg).

Note: This post is not a substitute for legal advice.

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Over the coming weeks, I will attempt to explain some potential defenses to negligence. Those producers that allow the public on their property (customers, employees of your integrator if you are a poultry operation, etc) or if you are just concerned about a teenager in the area wrecking his ATV on your property may be curious to learn about potential defenses that may exist. Please remember every negligence claim is different and the facts of each claim will depend on the defenses available.

Contributory negligence is an affirmative defense, one that must pled in a timely manner in order for the court to consider the defense. The idea behind contributory negligence is that the injured party also owes a duty of care to himself or herself and breaching that duty is significant enough to bar the injured party from recovering damages. Only a few states still recognize this defense besides Maryland. Those states include Virginia, North Carolina, Alabama, and the District of Columbia.

Duty of care is a legal obligation you owe to others to use reasonable care when performing acts that could foreseeably hurt others. The duty of care will depend on a variety of factors and depends on the facts of each case (it is very fact driven). For example, if you operate a corn maze on your farm, we would expect you to keep the trails clean and clear of any obstacles that could hurt customers. For a customer using the corn maze, we would expect that customer to not run or act in a way that could injure him or herself. If the customer is not exercising this level of care then he or she has potential breach the duty of care owed to themselves and the defense of contributory negligence potentially applies (again it is fact specific and would depend on the facts of each case).

For example, you sell your own pasture raised beef at the local farmer’s market. One day a customer comes to you and complains that your beef made him sick. The customer is now suing you for negligence. While preparing for the trial your attorney discovers that the customer has a long history of storing his meat on his kitchen counter for days before cooking it. The customer has a duty of care to take reasonable precautions in storing the meat (such as putting it in the freezer). This would be an example of contributory negligence that would potentially limit your liability. If the customer had properly stored the meat, but had improperly cooked the beef then this would be another example of contributory negligence.

As a business owner, you do not want to rely solely on this potential defense. Contributory negligence is fact specific and is also a question for the jury to decide. You should always check with your insurance agent to see if areas of your business are covered under farm’s liability policy. You should also work with the insurance agent to make sure that you have the right level of coverage (what is the right level of coverage? That is going to depend on you, your operation, and what you can afford to pay). You may also want to work with an attorney in your area to see if additional signage is necessary or any other steps you can do to limit your liability. Being proactive is a good way to limit some of your potential legal liability.

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