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What are the common defenses to negligence actions?
Jurisdictions commonly recognize three principle defenses to negligence actions.
Contributory Negligence – This doctrine bars a plaintiff’s recover 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.
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.
- 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.
- 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 recover is reduced, however, by her percentage of negligence.
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 acknowledgement of the potential dangers inherent in this activity. Bob is injured when heavy winds cause him to crash while landing. His acknowledgement is likely an assumption of this risk — which may bar his recover from PlaneJumpers for allegedly negligent instruction for not preparing him for landing in heavy wind.
Discussion: 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 is 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 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 William’s injuries should be offset by William’s negligence.
Goudkamp, James, Rethinking Contributory Negligence (June 14, 2013). James Goudkamp, ‘Rethinking Contributory Negligence’ in Stephen Pitel, Jason Neyers and Erika Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart Publishing 2013); Oxford Legal Studies Research Paper No. 40/2014. Available at SSRN: https://ssrn.com/abstract=2450475
Dongen, Emanuel and Verdam, Henriëtte, The Development of the Concept of Contributory Negligence in English Common Law (January 29, 2016). Utrecht Law Review, Vol. 12, No. 1, p. 61-74, January 2016. Available at SSRN: https://ssrn.com/abstract=2736333. The injured party’s own conduct which has contributed to the damage that he has suffered has been a bar to the recovery of damages for centuries in the common law tradition. This article describes and analyses the historical development, from the early modern period until the Law Reform (Contributory Negligence) Act of 1945, of the way in which English common law dealt with cases in which the behaviour of the injured party contributed to the occurrence of his damage – nowadays called ‘contributory negligence’. Historically, contributory conduct was linked to the (broader) question of causation. The way in which cases involving contributory negligence were dealt with slowly developed from a very strict rule, depriving the injured party of his action even in the presence of the slightest degree of negligence on his part (leading to a so-called all-or-nothing approach), into a more lenient approach, in which attempts aimed at doing justice to the degree to which both parties contributed to the accident were made during the 19th century. Furthermore, juries regularly mitigated the damages they awarded, rather than applying the all-or-nothing rule. The idea of a partition of damages seems to have emerged in English common law around the end of the 19th century. In 1945, the possibility of a reduction, based on the respective degrees of the responsibility of the parties, was officially introduced with the Law Reform (Contributory Negligence) Act, which is still in force today.
Porat, Ariel, The Many Faces of Negligence (January 11, 2012). Theoretical Inquiries in Law, Vol. 4, p. 105, 2003. Available at SSRN: https://ssrn.com/abstract=376205 or http://dx.doi.org/10.2139/ssrn.376205. Negligence law is built around the paradigmatic case of a person who unreasonably preferred his own interests to those of others and, as a result, caused damage to another person. However, this case is not representative of all instances of negligence. In some cases, the negligent injurer failed in balancing between the interests of the victim alone; in other cases, he failed in balancing between the victim’s interests and those of a third party; sometimes the injurer failed in balancing the victim’s interests and the interests of the public or of society as a whole; and in yet other instances, he failed in balancing between his own interests. This article argues that the law should not treat in the same manner the different types of instances of failure in balancing between interests. Both justice and deterrence considerations mandate different treatment for the different types of instances, in accordance with the type of interests that the negligent injurer failed to balance. The article focuses on the typical types of balances of interests that the potential injurer is required to conduct before taking action, with the aim of determining the degree to which it is crucial to impose tort liability in each type of case. The article also examines whether prevailing negligence law is compatible with the thesis developed in the article and proposes tools for achieving such compatibility.