8.2 Defenses, Damages, and Vicarious Liability
Key Takeaways
- Contributory negligence bars all recovery if the plaintiff is even 1% at fault; only a few jurisdictions still use it.
- Comparative negligence reduces the award by the plaintiff's percentage of fault; modified versions cut off recovery at a 50% or 51% threshold.
- Damages are compensatory (special plus general) or punitive; many states bar insuring punitive damages as against public policy.
- Vicarious liability holds one party responsible for another's acts, most commonly an employer under respondeat superior.
- Joint and several liability lets a plaintiff collect the full judgment from any one defendant who is then left to seek contribution.
Defenses to Negligence
A defendant can defeat or reduce a negligence claim with one of several defenses.
Contributory Negligence (the harsh rule)
If the plaintiff is even 1% at fault, recovery is $0. Only a small number of jurisdictions still apply pure contributory negligence, including Alabama, Maryland, North Carolina, Virginia, and the District of Columbia.
Comparative Negligence (the majority rule)
The award is reduced by the plaintiff's percentage of fault.
- Pure comparative: the plaintiff recovers even at 99% fault (reduced by that share).
- Modified comparative: recovery is barred once the plaintiff crosses a 50% or 51% fault threshold.
Worked Example: Comparative Negligence Math
A plaintiff has $100,000 in proven damages and is found 30% at fault.
- Recovery = $100,000 x (1 - 0.30) = $70,000 in any comparative state.
Now assume the plaintiff is 51% at fault with the same $100,000 in damages:
- Pure comparative: $100,000 x 0.49 = $49,000.
- Modified 50% bar: recovery = $0 (plaintiff is more at fault than the defendant).
- Modified 51% bar: $0 once the plaintiff reaches 51%.
Exam trap: Watch the threshold wording. "50% bar" cuts off at 50%; "51% bar" allows recovery at exactly 50% but not 51%.
Types of Damages
| Damage type | Subtype | What it pays | Insurable? |
|---|---|---|---|
| Compensatory | Special | Measurable economic loss: medical bills, lost wages, repair costs | Yes |
| Compensatory | General | Non-economic loss: pain and suffering, disfigurement | Yes |
| Punitive | — | Punishes egregious or willful conduct; not tied to actual loss | Often barred |
Punitive (exemplary) damages punish the wrongdoer rather than compensate the victim. Many states prohibit insuring punitive damages as against public policy, so the insured may pay them personally even with liability coverage in force.
Vicarious and Joint Liability
Vicarious liability makes one party responsible for the negligent acts of another because of their relationship.
- Respondeat superior — an employer is vicariously liable for an employee's negligence committed within the scope of employment (a delivery driver who rear-ends a car while making deliveries).
- A parent may be vicariously liable for a minor child; a vehicle owner may be liable for a permissive driver.
Joint and several liability lets a plaintiff collect the entire judgment from any one of several defendants, regardless of that defendant's share of fault. That defendant must then pursue contribution from the others. If three defendants cause $300,000 in indivisible harm, the plaintiff may collect all $300,000 from the single solvent defendant.
Other Defenses the Exam Tests
Beyond fault allocation, two affirmative defenses appear regularly.
- Assumption of risk — the plaintiff voluntarily and knowingly accepted a known danger (a spectator hit by a foul ball at a ballpark). The defense reduces or bars recovery.
- Statute of limitations — the plaintiff filed suit after the legal deadline expired, so the claim is barred regardless of merit.
A release or waiver signed before an activity can also defeat a claim, though courts scrutinize waivers and may void them for gross negligence or against public policy.
Computing the Insurer's Net Payment
Damage type and fault allocation combine to set what the policy actually pays. Suppose a covered claim produces $50,000 special (medical and wages), $30,000 general (pain and suffering), and $40,000 punitive damages, and the insured is 20% comparatively at fault in a pure comparative state.
- Compensatory total = $50,000 + $30,000 = $80,000, reduced by 20% comparative fault chargeable to the claimant where applicable.
- Punitive $40,000 may be uninsurable in many states as against public policy, so the policy could exclude it entirely.
Exam trap: When a question lists punitive damages, check whether the state bars insuring them — the insurer may pay only the compensatory portion.
Contribution, Indemnity, and Hold-Harmless
When multiple parties share fault, the law sorts out who ultimately pays.
| Concept | Meaning |
|---|---|
| Contribution | A defendant who paid more than its share recovers the excess from co-defendants |
| Indemnity | One party shifts the entire loss to another by agreement or operation of law |
| Hold-harmless agreement | A contract clause transferring liability from one party (indemnitee) to another (indemnitor) |
A broad-form hold-harmless agreement requires the indemnitor to assume liability even for the indemnitee's sole negligence — the widest transfer and the one most likely to be insured under the CGL's contractual liability provisions.
A plaintiff with $80,000 in damages is found 40% at fault in a pure comparative negligence state. How much does the plaintiff recover?
Independent Contractors and the Scope-of-Employment Line
Vicarious liability under respondeat superior reaches employees acting within the scope of employment, but generally not independent contractors, because the hiring party does not control the details of an independent contractor's work.
- Detours and minor side trips usually remain within scope; a major frolic for personal reasons falls outside it.
- Exceptions can still attach liability for non-delegable duties (such as maintaining a safe premises) or inherently dangerous work.
Exam trap: The label "independent contractor" does not automatically defeat liability when the work is inherently dangerous or the duty is non-delegable, so read the facts, not just the title.
Under the doctrine of respondeat superior, an employer is most likely liable when: