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Defenses to Negligence

18. 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?

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