Defenses to Negligence - Explained

What Theories offer a Defense in a Negligence Action?

Written by Jason Gordon

Updated at April 4th, 2023

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What are the Common Defenses to Negligence Actions?

Jurisdictions commonly recognize three principal defenses to negligence actions.

Contributory Negligence
Comparative Negligence
Assumption of the Risk

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What is Contributory Negligence?

This doctrine bars a plaintiff's recovery in a negligence action if her own fault contributed to the injury in any degree, however slight.

Note: Contributory negligence is only applied in a few jurisdictions and in limited circumstances.

What is Comparative Negligence?

Comparative negligence compares the degree of fault assessable against the defendant with that assessable against the plaintiff. The jury is left to access the percentage of negligence between the parties.

What is Pure Comparative Negligence?

In a pure comparative negligence jurisdiction, the plaintiff can only recover the percentage of damages not attributable to her own fault.

Example: If the plaintiff is 90% negligent for her loss of $100k, she can only recover $10K from the defendant.

What is Modified Comparative Negligence?

In a modified comparative negligence state, the plaintiff cannot recover if her negligence is greater than (or as great as in some jurisdictions) the negligence of the defendant.

Example: If the plaintiff's negligence is less than 50% compared with that of the defendant(s), she can recover damages. Her recovery is reduced, however, by her percentage of negligence.

What is Assumption of the Risk?

Assumption of the risk arises when the plaintiff knowingly and willfully undertakes an activity made dangerous by the negligence of another.

That is, the plaintiff identifies a potentially harmful situation brought about by the defendant's conduct, understands the risk associated with the situation, and proceeds to voluntarily expose herself to this risk of harm.

This is a defense against any harm suffered by the plaintiff as a result of this exposure. In some situations, the parties can contractually acknowledge certain risks in a given activity.

This may have the effect of assuming the risk of any harm suffered as a result of those risks.

Example: Skydiving is an inherently risky activity. Bob hires Plane Jumpers, LLC to instruct him in this activity. Before his first solo jump, Bob signs an acknowledgment of the potential dangers inherent in this activity. Bob is injured when heavy winds cause him to crash while landing. His acknowledgment is likely an assumption of this risk which may bar his recovery from Plane Jumpers for allegedly negligent instruction for not preparing him for landing in heavy wind.

Discussion Question

Which, if any, of the defenses to negligence do you find most compelling? Why?

Practice Question

Beverly owns a small store. She recently mopped the floor and placed wet floor signs all around the area. William is wearing sneakers with small wheels on the sole. These wheels allow him to skate around on smooth surfaces. He approaches the wet floor area and takes notice of the sign. He proceeds to skate across the wet floor but falls and breaks his ankle. If William sues Beverly, what defenses might she put forward?

The most common negligence defenses are contributory negligence, comparative negligence, and assumption of risk.
- Contributory negligence is applicable in circumstances where the injury occurs and both the plaintiff and the defendant are at fault. A plaintiff contributes to his own injury when his behavior falls below what is required by the reasonable person standards, which gauges what the reasonable person would have done to protect himself from injury. Generally, this is a complete bar to the plaintiff recovering damages. Most jurisdictions have completely abandoned the contributory negligence defense, except in limited circumstances.
- Comparative negligence allows the court jury to compare the negligence of the plaintiff and defendant in bringing about the harm. The plaintiff can recover the percentage of injury determined to be caused by the defendant's conduct. Note: In a modified comparative advantage state, the plaintiff cannot recover anything if she is more than 50% negligent. The 50% rule does not apply in pure comparative advantage states. Importantly, comparative negligence allows a negligent plaintiff to recover some damages for their injuries and is not a complete bar to recovery by a negligent plaintiff.
- Assumption of risk occurs when the plaintiff is said to assume the risk of the injury. It normally arises when she voluntarily enters a dangerous situation, fully aware of the risk involved. The principle behind this defense is that a plaintiff who voluntarily consents to an activity cannot later sue if injured.
In the example from the practice question, Beverly should opt for the assumption of risk as her defense. This is because of the fact that she put up the sign warning others of the wet floor. William was aware of the sign and the danger yet chose to ignore the warning. A secondary argument would be that William was comparatively negligent and any damages awarded against Beverly for Williams injuries should be offset by William's negligence.

Related Topics

negligence defenses negligence liability

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