Defenses To Negligence

Front 1

CONTRIBUTORY NEGLIGENCE

Back 1

Contributory negligence is negligence on the part of the plaintiff that contributes to her injuries. The standard of care for contributory negligence is the same as for ordinary negligence. Hence, a rescuer will not be deemed contributorily negligent without taking into account the emergency situation. Also, plaintiff's violation of an applicable statute may be used to establish his contributory negligence.

1. As defense to defendant's violation of statute

- contributory negligence is a defense to negligence proved by defendant's violation of an applicable statute unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment (e.g. children injured after darting into street in school zone and getting hit by speeding car of defendant).

2. No Defense to Intentional Torts

- Contributory negligence is not a defense to wanton and willful misconduct or intentional tortious conduct.

3. Effect of Contributory Negligence

- Contributory negligence completely barred plaintiff's right to recovery at common law. Almost all jurisdictions now favor a comparative negligence system.

Front 2

LAST CLEAR CHANCE - AN EXCEPTION TO CONTRIBUTORY NEGLIGENCE

Back 2

Last clear chance permits a plaintiff to recover despite her contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.

1. Helpless peril - in many states, where plaintiff is in helpless peril, defendant will be liable if he knew or should have known of plaintiff's predicament

2. Inattentive Peril - in "inattentive peril" cases (i.e. plaintiff could have extricated herself if attentive), defendant must actually have known of plaintiff's predicament

3. Prior Negligence Cases - for the last clear chance doctrine to apply, defendant must have been able, but failed, to avoid harming plaintiff at the time of the accident. If defendant's only negligence occurred earlier, the doctrine will not apply.

Front 3

IMPUTED CONTRIBUTORY NEGLIGENCE

Back 3

As a general rule, the contributory negligence of a third party will be imputed to a plaintiff (and bar her claim) only when the relationship between the third party the plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence. Negligence is imputed in employer-employee, partner, and joint venture relationships. Negligence is not imputed between husband and wide, parents and child, automobile driver and owner.

Front 4

ASSUMPTION OF RISK

Back 4

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. Plaintiff must have (i) known of the risk and (ii) voluntarily proceeded in the face of the risk

1. Implied Assumption of the Risk

- Knowledge may be implied where the risk is one that an average person would clearly appreciate. Plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency. Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

2. Express Assumption of the Risk

- The risk may be assumed by an express agreement

3. No Defense to Intentional Torts

- Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful misconduct.

Front 5

COMPARATIVE NEGLIGENCE

Back 5

In comparative negligence states, plaintiffs contributory negligence is not a complete bar to recovery. Rather, the trier of fact weighs plaintiff's negligence and reduces damages accordingly. A majority of states have adopted partial comparative negligence, which still bars plaintiff's recovery if his negligence was more serious than defendant's negligence. States that have adopted pure comparative negligence allow recovery no matter how great the plaintiff's negligence was.

Front 6

COMPARATIVE NEGLIGENCE EFFECT ON OTHER DOCTRINES

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1. Assumption of Risk

- Implied assumption of risk is analyzed as either (i) a limitation on the duty owed to the plaintiff, i.e. defendant does not owe a duty to protect plaintiff against known risks (e.g. being hit by a foul ball at a baseball game, or

(ii) contributory negligence (i.e. plaintiff unreasonably encountered a known risk, thereby reducing or barring her damages under the state's comparative negligence rules.)

Situations implying the later will be most common.

2. Wanton and Willful Conduct

- Plaintiff's negligence will be taken into account in most states even though the defendant's conduct was wanton and willful or reckless. However, the plaintiff's negligence is still no defense to intentional tortious conduct by defendant.