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
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.
