Negligence: Defenses

Question 1

Under this minority doctrine, if the plaintiff’s failure to exercise reasonable care for his own safety is a contributing factor to his own injury, he is barred from recovery for the defendant’s negligent action.

Answer 1

Contributory Negligence

Question 2

Modernly, the doctrine of comparative negligence has replaced contributory negligence, so that liability is apportioned according to the relative degrees of fault of the plaintiff and defendant. In a pure comparative negligence jurisdiction like California, the plaintiff will recover some damages no matter how great his own negligence was. In partial comparative negligence jurisdictions, the plaintiff will not recover if his own negligence equals or exceeds the defendant’s.

Answer 2

Comparative Negligence

Question 3

limits the contributory negligence defense so that even if the plaintiff was contributorily negligent, he will be permitted to recover if the defendant had a superior opportunity to avoid the accident and failed to do so. For example, if the plaintiff, through his own negligence, is in a position of helpless or inattentive peril and therefore unable to avoid an impending accident, and the defendant could have avoided the accident through the exercise of due care, but failed to do so, then the plaintiff’s contributory negligence will not bar his recovery from the defendant.

Answer 3

Last Clear Chance Doctrine

Question 4

Under this doctrine a plaintiff assumes the risk of harm if he voluntarily subjects himself to a known and appreciated risk. Such consent may be expressly created by agreement between the parties, or it may be implied by the plaintiff’s conduct. At common law, assumption of the risk is a complete bar to recovery in a negligence action.

Answer 4

Assumption of the Risk