8.2 Defenses, Damages, and Vicarious Liability

Defenses to a Negligence Claim

Contributory Negligence (the harsh rule)

If the plaintiff is even 1% at fault, recovery is $0. As of 2026 only five jurisdictions apply pure contributory negligence: Alabama, Maryland, North Carolina, Virginia, and Washington D.C. A narrow escape hatch — the last clear chance doctrine — lets a plaintiff recover if the defendant had the final opportunity to avoid the harm.

Comparative Negligence (the modern majority rule)

Recovery is reduced by the plaintiff's fault percentage:

• Pure comparative — the plaintiff recovers even if 99% at fault (only the 1% attributable to the defendant).
• Modified comparative — recovery is barred once the plaintiff reaches 50% (the 'not greater than' rule) or 51% (the '50% bar' rule) depending on the state.

Assumption of Risk

Bars recovery when the plaintiff knew of, appreciated, and voluntarily accepted a specific danger — a spectator hit by a foul ball at a ballpark.

Categories of Damages

Liability policies pay compensatory damages within limits. Whether punitive damages are payable depends on state law — a frequent trap. Defense costs are normally paid in addition to the limit on most personal lines and CGL forms (defense is 'outside the limits'), but eroding/defense-within-limits forms reduce the limit as defense is spent.

Worked Example: Comparative Fault + Split Limits

Driver A carries a 100/300/50 split-limit auto policy (per person / per accident BI / property damage). A jury values an injured pedestrian's bodily injury at $120,000 and finds the pedestrian 20% at fault in a pure comparative state.

• Step 1 — Reduce the award by the plaintiff's fault: $120,000 x (1 − 0.20) = $96,000 owed.
• Step 2 — Apply the per-person BI limit of $100,000. Because $96,000 is below the $100,000 cap, the insurer pays the full $96,000.

If the award had been $150,000 at the same fault split, the reduced figure would be $120,000, but the per-person cap of $100,000 would limit the insurer's payment to $100,000 — the insured is personally exposed for the remaining $20,000.

Vicarious (Imputed) Liability

Vicarious liability holds one party responsible for another's negligence even though the first party did nothing wrong:

• Respondeat superior — an employer is liable for an employee's negligence committed within the scope of employment.
• Parental liability — a parent may be liable for a minor child's acts (often capped by statute).
• Permissive use — a vehicle owner can be liable for a driver operating with permission; this is why the PAP and CGL extend to permitted users.

Independent contractors generally do not create vicarious liability for the hiring party — a tested distinction from employees.

Comparative vs. Contributory Negligence, With Numbers

Defenses based on the plaintiff's own fault take two main forms. Pure contributory negligence, a harsh minority rule, bars any recovery if the plaintiff was even one percent at fault. Comparative negligence, the modern majority approach, reduces the plaintiff's recovery by the percentage of fault: pure comparative allows recovery reduced by the plaintiff's share even at 90 percent fault, while modified comparative (the 50 percent or 51 percent bar) denies recovery once the plaintiff's fault reaches the threshold.

A plaintiff 30 percent at fault with 100,000 dollars in damages recovers 70,000 under comparative negligence but zero under contributory negligence.

Other Defenses: Assumption of Risk and Immunities

Assumption of risk bars recovery when the plaintiff knowingly and voluntarily encountered a known danger, such as a spectator hit by a foul ball at a game. The statute of limitations bars suits filed too late. Immunities (governmental, charitable in some states, intra-family in some states) shield certain defendants. The last clear chance doctrine can revive a contributorily negligent plaintiff's claim if the defendant had the final opportunity to avoid the harm. Matching the defense to the scenario, and knowing which defenses fully bar versus merely reduce recovery, is a core exam skill.

Categories of Damages

Damages fall into compensatory and punitive. Compensatory damages include special (economic) damages, measurable losses such as medical bills, lost wages, and repair costs, and general (non-economic) damages such as pain, suffering, and loss of consortium. Punitive (exemplary) damages punish willful, wanton, or malicious conduct and deter others; they are not tied to the plaintiff's actual loss, and many policies and some states limit or bar their insurability. Distinguishing special from general from punitive damages, and remembering that punitive damages may be uninsurable, frequently determines the correct answer.

Vicarious (Imputed) Liability

Vicarious liability holds one party responsible for another's negligence based on their relationship, without the first party being personally at fault. Employers are liable for employees' acts within the scope of employment under respondeat superior; principals for agents; parents for children in certain situations; and vehicle owners for permissive users under some state owner-liability statutes. This is why a business is sued when its delivery driver causes a crash, and why auto liability extends to the owner when a friend drives the insured's car.

The exam tests vicarious liability by describing an employee or permissive user causing harm and asking who else is liable.