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 states use it.
- Pure comparative reduces recovery by the plaintiff's fault %; modified comparative bars recovery at the 50% or 51% threshold — read which bar the question states.
- Compensatory damages (special/economic and general/non-economic) are insurable; punitive damages are often uninsurable by public policy.
- Vicarious liability (respondeat superior, agency, permissive use) imposes liability for another's negligence only when the act is within the scope of the relationship.
Negligence Defenses Tested on the Exam
Even where negligence exists, the defendant may reduce or eliminate liability with a recognized defense. The exam tests four:
- Contributory negligence — in the few pure-contributory jurisdictions, a plaintiff who is even 1% at fault recovers nothing. Harsh; only a handful of states use it.
- Comparative negligence — damages are reduced by the plaintiff's share of fault. Two flavors are tested below.
- Assumption of risk — the plaintiff knowingly and voluntarily accepted a known danger (e.g., a spectator hit by a foul ball).
- Last clear chance — even a negligent plaintiff may recover if the defendant had the final opportunity to avoid the harm and failed to use it.
Comparative Negligence: Pure vs. Modified (Worked Numbers)
Pure comparative: plaintiff recovers damages minus their own fault percentage, no matter how high. A plaintiff 80% at fault with $100,000 damages recovers $20,000 (= $100,000 × 20%).
Modified comparative (50% bar): plaintiff recovers only if less than 50% at fault. At exactly 50% → $0.
Modified comparative (51% bar): plaintiff recovers only if 50% or less at fault; 51% or more → $0.
| Plaintiff fault | $100,000 damages — Pure | 50% bar | 51% bar |
|---|---|---|---|
| 30% | $70,000 | $70,000 | $70,000 |
| 50% | $50,000 | $0 | $50,000 |
| 51% | $49,000 | $0 | $0 |
| 80% | $20,000 | $0 | $0 |
Trap: Watch whether the question says 50% bar or 51% bar — the answer at exactly 50% or 51% fault flips between them.
Types of Damages
Liability claims pay damages, which the exam splits into:
- Compensatory — Special (economic): out-of-pocket, provable losses — medical bills, lost wages, repair costs.
- Compensatory — General (non-economic): pain and suffering, disfigurement, loss of consortium — harder to quantify.
- Punitive (exemplary): awarded to punish egregious conduct, not to compensate. Often uninsurable by public policy or statute in many states.
Liability policies pay compensatory damages. The CGL insuring agreement says the insurer pays "sums the insured becomes legally obligated to pay as damages because of bodily injury or property damage" — punitive damages frequently fall outside that, depending on state law.
Vicarious Liability
Vicarious liability holds one party responsible for the negligent acts of another because of their relationship — even though the first party did nothing wrong directly.
| Relationship | Doctrine | Example |
|---|---|---|
| Employer / employee | Respondeat superior | Employer liable for employee's on-the-job negligence |
| Vehicle owner / permitted driver | Owner liability / family-purpose | Parent liable for teen driver |
| Principal / agent | Agency | Firm liable for agent acting in scope |
This is why the PAP extends coverage to permissive users and why the CGL defines "insured" to include employees acting within the scope of employment. Trap: vicarious liability requires the act to be within the scope of the relationship — a frolic-and-detour or off-duty act may break it.
A plaintiff with $100,000 in damages is found 51% at fault in a modified comparative negligence state using the 51% bar. The plaintiff recovers:
An employee, while making deliveries for the company, negligently rear-ends another car. The injured party sues the employer. The employer's potential liability is best described as:
Contributory vs. Comparative Negligence
Contributory negligence (a minority of states) bars all recovery if the plaintiff is even 1% at fault — a harsh rule. Pure comparative negligence reduces recovery by the plaintiff's own percentage of fault, so a 90%-at-fault plaintiff still recovers 10%. Modified comparative systems use a 50% or 51% bar: the plaintiff recovers nothing once their fault reaches the threshold. Worked: $100,000 in damages, plaintiff 30% at fault, recovery = $70,000 in any comparative state; the same plaintiff at 51% recovers $0 under a 50%-bar modified rule but $49,000 under pure comparative.
Assumption of Risk and the Statute of Limitations
Assumption of risk bars recovery when a plaintiff knowingly and voluntarily accepted a danger (a spectator hit by a foul ball). The statute of limitations sets a deadline to sue; once it expires the claim is time-barred regardless of merit. The last clear chance doctrine can revive a contributorily negligent plaintiff's claim if the defendant had the final opportunity to avoid harm. These defenses appear on the exam as facts that defeat or reduce an otherwise valid negligence claim — read for whether the plaintiff's own conduct or timing undercuts recovery.
Vicarious Liability in Depth
Vicarious liability imputes one party's negligence to another because of their relationship, even though the second party did nothing wrong. The classic form is respondeat superior — an employer is liable for an employee's torts committed within the scope of employment. Other examples: a vehicle owner for a permissive driver, a parent for a child under family-purpose doctrine, and a principal for an agent. Independent-contractor acts generally are not imputed, except for non-delegable or inherently dangerous duties. Identify the relationship and whether the act fell within its scope.
Joint and Several Liability and Indemnification
Under joint and several liability, each of several at-fault defendants can be held responsible for the entire judgment, leaving them to seek contribution from co-defendants. A plaintiff may collect 100% from the deepest pocket even if that defendant was only partly at fault. Indemnification (hold-harmless) agreements shift liability by contract — common in construction, where a subcontractor agrees to indemnify the general contractor. The exam ties these to additional insured endorsements: the contract requires the sub to add the GC as an insured on the sub's CGL so the indemnity is actually funded by insurance.