Defenses To Negligence: Chapter Objectives

Chapter 9
Defenses to Negligence
 Chapter Objectives:
 Explain the difference between contributory negligence and
comparative negligence
 List and explain some of the exceptions to contributory
negligence such as the last clear chance doctrine and the
rescuer doctrine
 Describe the various types of comparative negligence
systems in place in the United States
 Be able to draft a comparative negligence defense in an
answer
 Explain the continued significance of contributory negligence
law in the United States
Tort Law for Paralegals, Fifth Edition

(c) 2016 by Neal R. Bevans
Contributory Negligence
 The doctrine of contributory negligence

was once followed in almost all
jurisdictions.
 Created by the courts, contributory
negligence is a doctrine that prevents
any award to plaintiffs when they
contribute to their own injuries.

 In the last few decades of the 20th

century many jurisdictions abandoned
contributory negligence in favor of a
more flexible – and some would argue
more just -- system called comparative
negligence.

Contributory as a Component
of Proximate Cause
 In order to prove that the defendant is liable

to the plaintiff, the plaintiff must prove that the
defendant had a duty, that he violated that
duty and that the violation of that duty was
the proximate cause of the injuries to the
plaintiff.

Contributory as a Component
of Proximate Cause
 Where the plaintiff has actually contributed in
some way to his own injuries, the causal
connection between the defendant’s actions
and the resulting harm is disrupted and
should therefore absolve the defendant of
any liability.

Contributory Negligence as a Kind
of “Clean Hands” Doctrine
 Another justification for contributory

negligence is that a plaintiff should enter the
court with “clean hands.”

Contributory Negligence as a
Form of Equitable Relief
 The court is permitted to deny the request

when it is obvious that the plaintiff has been
acting improperly.
 supporters of contributory negligence claim
that this rule should apply in negligence
actions.

Historical Reasons for
 Is Contributory Negligence a “pro-business”

model?

Defining Contributory
Negligence
 According to the Restatement of Torts,

contributory negligence is defined as the
plaintiff’s failure to take reasonable care for
his own safety.

The Flip Side of Contributory
Negligence
 Negligence and contributory negligence are
not flip sides of the same coin.
 Contributory Negligence does not mean that
the plaintiff breached a duty to the defendant
 Instead, the plaintiff breached a duty to
himself/herself.

The Basic Premise of
 The basic premise behind contributory
negligence is that a plaintiff should not be
permitted to recover damages from someone
else’s negligence when he failed to exercise
reasonable care himself.

Historical Development of
 Since most jurisdictions once followed
contributory negligence theories, the case law
that developed under those theories provides
an important underpinning to current cases.

Why Does Contributory
Negligence Continue to Exist?
 The Judiciary refuses to enact it on its own
initiative
 The Legislature is uncomfortable or reluctant
to change the law of the land

The Doctrine of “Avoidable
Consequences”
 Under this doctrine, the plaintiff must take

reasonable steps to insure proper medical
treatment for his injuries, or take reasonable
steps to protect damaged property.

How Much at Fault Must
Plaintiff Be?
 Under the basic theory of contributory
negligence, a plaintiff can be barred from
recovery for any amount of negligence, no
matter how slight.

Is There Such a Thing as
“Contributory Negligence Per
Se”?
 Most jurisdictions do not follow such a

rule.
 The plaintiff’s violation of a safety statute
is simply one more factor to consider.

The “All or Nothing” Element of
 However, if the plaintiff has contributed, even

in a minor way, to his/her own injuries, then
no award is authorized.

Is Contributory Negligence
Doomed?
 Many jurisdictions that have abandoned the

concept in the past thirty years.
 Whether every jurisdiction will eventually do
away with contributory negligence is an open
question.

Exceptions to Contributory
Negligence
 Several doctrines have developed over time
that provide exceptions to the harsh
application of contributory negligence.
 One of the most common is Last Clear
Chance.

Last Clear Chance
 Under the last clear chance doctrine, a

plaintiff’s contributory negligence will be
excused if the defendant has the last
opportunity of avoiding the accident and
fails to do so.

Proving Last Clear Chance
 In many jurisdictions, the plaintiff is

allowed to raise the issue of Last Clear
Chance as a routine matter when the
defendant raises the defense of
contributory negligence.

Proving Last Clear Chance
 It is ultimately a jury question.

Pleading Last Clear Chance
 See Figure 9-3 for an example of a

pleading containing an allegation of Last
Clear Chance.

Other Exceptions to Contributory
Negligence: Sudden Emergency
 Under this doctrine, when a plaintiff is

confronted with a sudden emergency,
something that requires a quick
response, he/she will not be held to the
same standard as would a plaintiff who
had more time to consider his/her
actions.

Other Exceptions to Contributory
Negligence: Assumption of the
Risk
 A defense of assumption of the risk is

the defendant’s assertion that the
plaintiff should be barred from recovering
any damages because plaintiff knowingly
placed himself in a dangerous situation.

Exceptions to Contributory
Negligence: Plaintiff’s Age and
Physical Factors
 The general rule is that a child is held to

the standard of a similarly situated child
and an impaired person is held to the
standard of a hypothetical reasonable
person with the same disability.

Mental Incompetence
 In almost all jurisdictions, a legally

insane person cannot be liable under

Rescue Doctrine
 When a person is attempting to save the life

of another the doctrine of contributory
negligence does not apply.

Situations Where Contributory
Negligence Does Not Apply
 Breach of contract
 Intentional torts
 Willful, wanton, or reckless conduct
 Strict liability—in some jurisdictions
 Ultra-hazardous activities
 Product Liability—in some jurisdictions

Contributory Negligence is a
Jury Question
 It is the jury’s decision whether the facts
support a claim that the plaintiff was
contributory negligent.

Comparative Negligence
 An approach to negligence cases that

balances the negligence of the
defendant against the negligence of the
plaintiff and permits a reduced recovery
for the plaintiff in proportion to his
negligence.

Historical Development of
 Originally created under ancient Roman law,
it was adopted by many European countries.

Comparative Negligence in the
U.S.
 Although many states adopted comparative
negligence as their only negligence model,
many also changed from contributory
negligence to comparative negligence.

The Uniform Comparative
Fault Act
 The Uniform Comparative Fault Act was

proposed as a way of creating a more uniform
approach to comparative negligence in the
various states.

The Three Models of
 There are three different approaches to

comparative negligence:
 Pure
 Modified
 Slight-gross

“Pure” Comparative
Negligence
 Under “pure” comparative negligence

schemes, a plaintiff is entitled to receive an
award of damages no matter how great his
fault, assuming that the defendant is also
found to be at fault.

Negligence
 Under the “New Hampshire” plan, a plaintiff
can recover if he is 50% negligent or less. If
he is more than 50% negligent, he is barred
from recovery, echoing the provisions of

Negligence
 Under the “Georgia plan,” a plaintiff must

be less than 50% negligent before he can
recover.

Modified Comparative
Negligence
 Under the modified comparative negligence

rules, a plaintiff’s recovery could be limited in
at least two ways.

Negligence
 In some jurisdictions, a plaintiff’s

negligence must be less than 50%.

Negligence
 In those states, if the plaintiff’s negligence is

greater than 50%, or greater than the
defendant’s negligence, he/she will receive
no recovery, mirroring the result in a
contributory negligence jurisdiction.

Negligence
 In other states that follow a form of “modified”

comparative negligence, the plaintiff’s
negligence can be equal to the defendant’s
negligence.

Slight-Gross Comparative
Negligence
 Under the “slight-gross” comparative

negligence scheme, a plaintiff is entitled to
recover if his negligence is slight and the
defendant’s negligence is great.

Combinations of Approaches
 In some jurisdictions, different forms of

comparative negligence are followed
depending on the issues in the case.

Types of Cases Where
Comparative Negligence Applies
 Comparative negligence generally applies

only to actions involving physical or property
damage.

Comparative Negligence and
Punitive Damages
 Generally, the adoption of comparative

negligence doctrines does not affect a
plaintiff’s right to seek punitive damages.

How Comparative Negligence
Affects Proximate Cause
Analysis
 Generally, the principles of proximate

cause are not affected by a jurisdiction’s
switch from contributory negligence to
comparative negligence.

“Sole Proximate Cause” Rule
 Under this rule, if the plaintiff is the sole

proximate cause of his injuries, he is not
entitled to recover any damages from a
negligent defendant.

Pleading Comparative
Negligence
 Comparative negligence, like contributory
negligence is an affirmative defense that
must usually be raised in the defendant’s
Answer before he/she will be allowed to take
advantage of it.

Settlement Issues in
Comparative Negligence Cases
 Obviously the settlement discussions in a

comparative negligence state will be more
involved – and more complicated – than in a
state that follows contributory negligence.

Multiple Defendants and
 It is common practice for codefendants to file
cross-claims against one another, whether
they are in contributory negligence states or
comparative negligence states.

Motions for Directed Verdict in
Comparative Negligence Cases
 In comparative negligence jurisdictions, a

directed verdict for the defendant would be
rare, since the jury must determine the
percentage of fault of both parties.

The Jury’s Verdict
 In some jurisdictions, the jury is asked a

series of questions to help determine the
percentage of fault of all parties.


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Chapter 9

Tort Law for Paralegals, Fifth Edition

 The doctrine of contributory negligence

Tort Law for Paralegals, Fifth Edition

 In the last few decades of the 20th

Tort Law for Paralegals, Fifth Edition

 In order to prove that the defendant is liable

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Another justification for contributory

Tort Law for Paralegals, Fifth Edition

 The court is permitted to deny the request

Tort Law for Paralegals, Fifth Edition

 Is Contributory Negligence a “pro-business”

Tort Law for Paralegals, Fifth Edition

 According to the Restatement of Torts,

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Under this doctrine, the plaintiff must take

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Most jurisdictions do not follow such a

Tort Law for Paralegals, Fifth Edition

 However, if the plaintiff has contributed, even

Tort Law for Paralegals, Fifth Edition

 Many jurisdictions that have abandoned the

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Under the last clear chance doctrine, a

Tort Law for Paralegals, Fifth Edition

 In many jurisdictions, the plaintiff is

Tort Law for Paralegals, Fifth Edition

 It is ultimately a jury question.

Tort Law for Paralegals, Fifth Edition

 See Figure 9-3 for an example of a

Tort Law for Paralegals, Fifth Edition

 Under this doctrine, when a plaintiff is

Tort Law for Paralegals, Fifth Edition

 A defense of assumption of the risk is

Tort Law for Paralegals, Fifth Edition

 The general rule is that a child is held to

Tort Law for Paralegals, Fifth Edition

 In almost all jurisdictions, a legally

Tort Law for Paralegals, Fifth Edition

 When a person is attempting to save the life

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 An approach to negligence cases that

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 The Uniform Comparative Fault Act was

Tort Law for Paralegals, Fifth Edition

 There are three different approaches to

Tort Law for Paralegals, Fifth Edition

 Under “pure” comparative negligence

Tort Law for Paralegals, Fifth Edition

Tort Law for Paralegals, Fifth Edition

 Under the “Georgia plan,” a plaintiff must