There are some cases that seem right out of a tort exam. This is one. In Kent, Washington, a woman chased her husband outside with a meat tenderizer after an argument. After he crossed a road, she decided to lay down across the road. She was then run over by a drunk driver, who was later arrested.
Clearly the woman was contributory (or comparably) negligent in laying across the road. However, that does not matter for the criminal charges because the driver of the Ford Expedition blew a .21 on a blood test, well above the limit of .08 BAL. He is therefore accused of a fatality while driving drunk.
In torts, it gets a bit more difficult. He was negligent per se in driving drunk. However, she was also negligent in laying across the road. Indeed, she may also be negligent per se in violating road rules. Even a sober driver might not have been able to see her in time. In a modified comparative negligence jurisdiction, a jury could find her more at fault and, if over 50 percent at fault, bar recovery. (I a pure comparative negligence jurisdiction, damages would simply be reduced by her percentage of fault in terms of recovery by her estate).
Under contributory negligence, a plaintiff can be barred due to any negligence of their part. There are two exceptions recognized by the courts: the helpless plaintiff and the inattentive plaintiff. The helpless plaintiff occurs when the plaintiff negligently placed himself in a situation of peril from which he was physically unable to remove himself, but the defendant saw, or should have seen the plaintiff to have avoided the accident. In the second exception, a plaintiff negligently placed himself in a situation of peril in which he was physically able to remove himself from the situation but was unaware of his peril. In that case, a defendant is still liable if he actually saw the plaintiff and could have avoided the accident by using ordinary care.
Thus, in this case, the driver might have defense in torts but primarily have mitigating arguments on sentencing in criminal law.