NEGLIGENCE: DEFENSES

Contributory Negligence

1. Traditional Rule

o If the plaintiff was negligent in some way, that negligence completely precluded the plaintiff’s recovery.

o This is the old common-law rule and is still the rule in only a handful of states.

2. “Last Clear Chance” Doctrine

o Allows a negligent plaintiff to recover upon showing that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.

Comparative Fault

• Plaintiff’s negligence does not completely bar recovery; it limits the plaintiff’s ability to recover

• Most jurisdictions have adopted a comparative fault approach.

Pure Comparative Negligence

the plaintiff’s recovery is reduced by the plaintiff’s percentage of fault

Modified Comparative Negligence

o If the plaintiff is more at fault than the defendant, then the plaintiff cannot recover.

o Some jurisdictions: If the plaintiff and defendant are equally plaintiff’s recovery is barred.

Multiple Defendants

• If there is more than one defendant, the plaintiff’s negligence is compared with the total negligence of all defendants combined.

Relationship to Other Defenses

o Most comparative negligence jurisdictions no longer use the last clear chance doctrine.

o Comparative fault is not a defense to intentional torts

o If the defendant’s conduct rose to willful, wanton, or reckless, the plaintiff’s recovery may still be reduced by the portion of the plaintiff’s own negligence.

Imputed Contributory Negligence

• One party’s negligence is imputed to another party

• Imputed contributory negligence is generally disfavored. It does NOT apply to:

• A child plaintiff whose parent’s negligence was a contributing cause of her harm, in a suit against a third party.

• A married plaintiff whose spouse was contributorily negligent in causing the harm, in a suit against a third party.

Express Assumption of Risk

o Rule: risk assumed by agreement though exculpatory provisions (disfavored)

o In general, parties can contract to disclaim liability for negligence.

o Courts will ask two questions:

• Is the waiver clear?

• Is the waiver enforceable?

o Courts might not enforce exculpatory provisions in certain situations:

• The waiver disclaims liability for reckless or wanton misconduct;

• There is a gross disparity of reckless between the two parties;

• The party seeking to enforce the provision offers services of great importance to the public (e.g., medical services);

• The provision is subject to contract defenses (e.g., fraud or duress);

• The enforcement would be against public policy.

Implied Assumption of Risk

a. Participants in and spectators of athletic events

• Courts often hold that a participant or spectator cannot recover because they knew of the risks and chose to accept those risks.

b. Unreasonably proceeding in the face of known, specific risk

• Occurs when the plaintiff voluntarily encounters a known, specific risk

• Contributory negligence jurisdictions and a minority of comparative-fault jurisdictions—this form of assumption of the risk remains a total bar to recovery.

• Most comparative fault jurisdictions—this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery.

  • The issue is whether the plaintiff unreasonably encountered the risk