Contributory negligence and objective imputation criteria in case law

Abstract

This paper analyzes the different normative criteria of objective imputation (causality in law) and their management as auxiliary tools by the jurisprudence to exclude liability in case of exclusive fault of the victim (or to reduce it, in case of contributory fault). The study examines each one of the criteria and their connection with the victim's fault in order to account the damage to the victim, even in cases where the tortfeasor is at fault (general life risks, with particular analysis of the preexisting condition or susceptibility; breach of statutory duties; increase in risk; remoteness), or to account the damage to the tortfeasor when only his fault is causative (bilateral care) and in cases in which he is the one who has provoked the victim's self-harming behavior (provocation). The jurisprudence also resorts, in order to exonerate the tortfeasor, to the criterion of the victim's competence, when the control of the situation corresponded to him, and the criterion of foresight test, if it considers that his conduct is the efficient cause of the damage suffered.