Defenses to Negligence Flashcards
(8 cards)
Comparative Negligence
🔹 What Is It?
The jury compares how much both the plaintiff and defendant were at fault, then reduces the plaintiff’s damages by the percentage of the plaintiff’s own fault
🟢 (A) Pure Comparative Negligence
The plaintiff can recover no matter how much they were at fault — even if they were 99% responsible.
🔍 Example:
* Total damages = $100,000
* Plaintiff = 90% at fault
* Defendant = 10% at fault
✅ Plaintiff still recovers $10,000
🟢 Used in states like California, New York, Florida
🟠 (B) Modified Comparative Negligence
This is the most common approach on the bar.
It comes in two flavors:
(i) 50% Bar Rule
Plaintiff can recover only if they are less than 50% at fault.
* If P is 49% at fault → ✅ recovery allowed
* If P is 50% or more at fault → ❌ barred from recovery
(ii) 51% Bar Rule
Plaintiff can recover only if they are 50% or less at fault.
* If P is 50% at fault → ✅ still recovers
* If P is 51% or more → ❌ no recovery
🟠 Most states use this rule.
🧪 Example – Modified Comparative Negligence
Facts: P trips over a broken step while texting. Jury finds:
* P = 40% at fault
* D (building owner) = 60% at fault
* Total damages = $100,000
✅ In either 50% or 51% Bar Rule state, P recovers $60,000 (damages reduced by 40%).
New Example:
* P = 51% at fault
* D = 49%
* ❌ In a 51% bar state, P gets nothing.
* ✅ In a 50% bar state, P still recovers 49%.
Contributory Negligence
🔹 What Is It?
If the plaintiff was even 1% at fault for their own injuries, they are completely barred from recovering anything — even if the defendant was 99% at fault.
🛑 It’s a harsh, “all or nothing” rule.
🛑 Only a few states still use it (Alabama, Maryland, North Carolina, Virginia, and D.C.).
⚖️ Rule Statement:
Under the doctrine of contributory negligence, if the plaintiff fails to exercise reasonable care for their own safety, and that negligence contributes to the injury, the plaintiff is barred from any recovery — regardless of how minimal the plaintiff’s fault was.
🧪 Example – MEE Style
Facts: P jaywalks at night without looking. D is driving 40 mph in a 25-mph zone and hits P.
* P is 5% at fault (jaywalking)
* D is 95% at fault (speeding)
❌ In a contributory negligence state, P gets nothing — no matter how bad the injury is.
💡 Bar Tip:
Even minor fault by the plaintiff (like not using a handrail, wearing slippery shoes, walking while texting) can bar recovery in contributory negligence states. Always flag this rule when the plaintiff is even a little careless.
✅ EXCEPTION: Last Clear Chance Doctrine
This helps plaintiffs in contributory negligence states.
If the defendant had the last clear opportunity to avoid the accident but failed to do so, the plaintiff can still recover — even if they were contributorily negligent.
🔍 Last Clear Chance Example:
P stumbles drunk onto train tracks. D, the train conductor, sees P in time but doesn’t stop or slow down.
✅ P can still recover because D had the last clear chance to prevent harm.
- Assumption of Risk:
- Assumption of Risk: This defense applies when a plaintiff knowingly and voluntarily assumes a particular risk of injury. Essentially, if you knowingly expose yourself to a danger, you may be prevented from recovering for the resulting harmlaw.cornell.edu. There are two types:
o Express Assumption of Risk: The plaintiff explicitly agrees to accept the risk, usually in writing, like signing a waiver or release. For example, if you sign a waiver before bungee jumping that says you assume all risks of injury, you might be barred from suing for negligence if you get hurt in a way covered by the waiver. (Courts will not enforce waivers for extremely reckless conduct or against public policy, but generally a clear waiver is a strong defense.)law.cornell.edu
o Implied Assumption of Risk: The plaintiff’s actions indicate they knew of the risk and proceeded anyway. This is often judged by circumstances: did the person voluntarily expose themselves to a known danger? For example, a spectator at a baseball game knows there’s a risk of foul balls – by choosing to sit in the stands, they impliedly assume that risk, and if hit by a foul ball, they may be unable to claim negligence against the team or stadium (because that’s a well-known inherent risk of the activity).
Joint and Several Liability
Joint and several liability comes into play when more than one defendant contributes to a plaintiff’s injury. It determines how damages are divided among multiple wrongdoers.
⚖️ Basic Rule – What Is Joint and Several Liability?
Each defendant is liable for the entire amount of damages, regardless of how much of the harm they actually caused.
The plaintiff can recover 100% of the damages from any one defendant.
Then, that defendant can go after the others for contribution.
🧠 When Does It Apply?
Courts apply joint and several liability when:
1. Multiple defendants acted together (e.g., in a conspiracy),
2. Defendants caused a single, indivisible harm (e.g., a single injury that can’t be split), or
3. The jurisdiction follows the traditional rule for joint tortfeasors.
🔍 Breakdown of Terms:
✅ Joint Liability
Means more than one defendant is responsible for the same harm.
✅ Several Liability
Means each defendant is only responsible for their share of the harm (modern trend in some states).
✅ Joint and Several Liability
Means each defendant is individually responsible for the full amount, but they can seek reimbursement from co-defendants.
⚖️ Contribution (After Judgment):
A jointly and severally liable defendant who paid more than their share can seek contribution from co-defendants.
* Each defendant pays a proportion based on fault (e.g., % responsibility).
* If Ben was 30% at fault but paid 100%, he can seek 70% contribution from Alex and Carl.
⚖️ Contribution (After Judgment):
**Joint and Several Liability
A jointly and severally liable defendant who paid more than their share can seek contribution from co-defendants.
* Each defendant pays a proportion based on fault (e.g., % responsibility).
* If Ben was 30% at fault but paid 100%, he can seek 70% contribution from Alex and Carl.
Vicarious Liability
Vicarious liability means a person (usually an employer or principal) is legally responsible for someone else’s wrongful act (usually their agent or employee), even if they didn’t do anything wrong themselves.
This is most often tested when an employee causes an accident or injury
Independent Contractors – Special Rule
Not a defense.
Vicarious Liability
📘 Rule:
Employers are usually NOT liable for the actions of independent contractors, because they don’t control how the work is done.
BUT—there are exceptions:
🚨 Exceptions Where Employer IS Liable:
1. Inherently dangerous activities (e.g., blasting).
2. Non-delegable duties (e.g., maintaining safe premises).
3. Negligent hiring or supervision of the contractor.
Indemnification
Not a defense
Vicarious Liability
Indemnification is when one party who pays for someone else’s wrongdoing can make that person pay them back—100% of what they had to pay.
It’s about fairness: if you were responsible for the harm, you should pay for it, even if someone else was sued and paid the judgment.
🧠 Think of it like this:
“I got sued and paid for the damage, but YOU were the one who caused the harm—so you should reimburse me.”
