36.2 Defenses to Negligence: Comparative Fault, Assumption of Risk & Immunities

36.2 Defenses to Negligence: Comparative Fault, Assumption of Risk & Immunities

Negligence defenses usually focus on the plaintiff's own conduct. Under NCBE's instructions, assume pure comparative negligence unless a question specifies another rule, and read carefully for facts showing that a jurisdiction keeps contributory negligence or uses a modified system.

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Defenses to Negligence

When a plaintiff establishes all elements of negligence, the defendant may assert affirmative defenses based on the plaintiff's own conduct.

┌──────────────────────────────┬──────────────────────────────┬──────────────────────────────┐
│    Contributory Negligence   │   Pure Comparative Negl.     │  Modified Comparative Negl.  │
│     (Traditional Common)     │      (Default MBE Rule)      │       (Majority Modern)      │
├──────────────────────────────┼──────────────────────────────┼──────────────────────────────┤
│ • Plaintiff fault of even 1% │ • Recovery reduced strictly  │ • 50% Rule: Barred if fault  │
│   completely BARS recovery   │   by % fault                 │   is 50% or greater          │
│ • Harsh "all-or-nothing"     │ • P can recover even if 99%  │ • 51% Rule: Barred if fault  │
│ • Exception: Last Clear      │   at fault (recovers 1%)     │   is 51% or greater          │
│   Chance doctrine            │ • Pure mathematical offset   │ • (50/50 split allows recov.)│
└──────────────────────────────┴──────────────────────────────┴──────────────────────────────┘

1. Contributory Negligence (Traditional Common Law / Minority)

• Complete Bar: At traditional common law, any contributory negligence on the part of the plaintiff—even 1%—acts as an absolute and complete bar to recovery.
• The Last Clear Chance Doctrine: A rebuttal to contributory negligence. If the plaintiff was negligent, they can still recover full damages if the defendant had the last clear opportunity to avoid the accident and failed to do so.
• Where It Still Applies: Only a few jurisdictions—Alabama, the District of Columbia, Maryland, North Carolina, and Virginia—retain pure contributory negligence. On the MBE, apply it only if the question says so.

2. Pure Comparative Negligence (Default MBE Rule)

• The Rule: The plaintiff's recovery is reduced strictly in proportion to their percentage of comparative fault.
• No Threshold Bar: There is no percentage bar. A plaintiff who is 90% at fault for their own injuries can still recover 10% of their damages from a defendant who was 10% at fault.
• MBE Default: NCBE instructs examinees to assume pure comparative negligence unless a question indicates otherwise.

3. Modified (Partial) Comparative Negligence (Majority of States)

Under modified comparative fault, the plaintiff's damages are reduced by their percentage of fault up to a statutory threshold, beyond which all recovery is barred:

1. The 50% Bar Rule (Equal Fault Bar): Plaintiff is barred from recovery if their fault reaches 50% or more. The plaintiff recovers only if their negligence is less than the defendant's (e.g., 49% fault recovers 51%; 50% fault recovers zero).
2. The 51% Bar Rule (Greater Fault Bar): Plaintiff is barred from recovery if their fault is 51% or greater. The plaintiff recovers if their fault is not greater than the defendant's (e.g., a 50/50 fault split permits the plaintiff to recover 50% of their damages).

4. Assumption of Risk

• Express Assumption of Risk: The plaintiff agrees in advance, usually by signing a release, not to hold the defendant liable for negligence. Courts enforce a clear release that covers the risk that occurred, but they refuse to enforce releases of liability for intentional, reckless, or grossly negligent conduct and releases that violate public policy—for example, releases demanded by providers of essential services such as hospitals (Tunkl v. Regents of the University of California, Cal. 1963).
• Implied Assumption of Risk: The plaintiff voluntarily encounters a known, specific risk. Requirements:
  1. The plaintiff had actual knowledge and appreciation of the specific risk; and
  2. The plaintiff voluntarily encountered the danger.
  • Primary implied assumption of risk: When the plaintiff takes part in an activity with inherent risks, such as being struck by another player during a sport, courts often hold that the defendant owed no duty to protect against those inherent risks (Knight v. Jewett, Cal. 1992). Because there is no duty, this remains a complete bar.
  • Secondary implied assumption of risk: When the plaintiff knowingly and voluntarily encounters a risk created by the defendant's negligence, most comparative fault states merge the defense into comparative fault, reducing rather than barring recovery.

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Actual vs. Proximate Cause and Comparative Fault Frameworks

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More on Defenses

Last Clear Chance in More Detail

• Helpless plaintiff: When the plaintiff cannot escape the danger, the defendant is liable if it knew or should have known of the plaintiff's peril and could have avoided the harm with reasonable care.
• Inattentive plaintiff: When the plaintiff could escape but fails to notice the danger, the defendant is liable only if it actually knew of the plaintiff's peril.
• Modern status: Most comparative fault states have abolished last clear chance and consider the timing of each party's negligence when assigning percentages of fault.

Applying Comparative Fault

• Multiple defendants: In a modified system, most states compare the plaintiff's fault with the combined fault of all defendants rather than with each defendant separately. With joint and several liability, the plaintiff may collect the reduced award from any liable defendant.
• Strict liability and products liability: Most comparative fault states reduce a plaintiff's recovery for her own fault in strict liability and products cases (see Sections 37.1 and 37.2).
• Intentional torts: Most states do not reduce an intentional tortfeasor's liability because of the victim's ordinary negligence.
• Reckless defendants: Traditionally, contributory negligence was no defense to willful or wanton misconduct. Comparative fault states generally compare the plaintiff's negligence with the defendant's recklessness.

Statutes of Limitations and Repose

• Statutes of limitations: The limitations period usually begins when the claim accrues. Under the discovery rule, which applies to many medical malpractice and latent-injury claims, the period begins when the plaintiff knew or reasonably should have known of the injury and its cause. Periods are often tolled while the plaintiff is a minor or legally incapacitated.
• Statutes of repose: A statute of repose sets an outside deadline measured from a fixed event, such as the sale of a product or the completion of construction, and can bar a claim even before the injury is discovered.

Immunities

• Federal government: The Federal Tort Claims Act waives the United States' immunity for negligent acts of federal employees within the scope of their employment, but it excludes claims based on discretionary functions and most intentional torts, subject to an exception for certain claims against law enforcement officers. Service members cannot sue for injuries incident to military service (Feres v. United States, 1950).
• State and local governments: States have their own tort claims acts. Many keep immunity for discretionary or planning-level decisions while allowing claims based on the negligent carrying out of routine operations.
• Officials: Judges and legislators have absolute immunity for official acts, while many executive officials have qualified immunity.
• Charitable immunity: Almost all states have abolished or sharply limited immunity for charities.
• Intrafamily immunity: Nearly all states have abolished immunity between spouses. Many have abolished parent-child immunity, often keeping protection for parents' exercise of reasonable discretion in discipline and supervision (Goller v. White, Wis. 1963).