8.2 Defenses, Damages, and Vicarious Liability

Defenses Against Negligence Claims

Even a clearly negligent defendant may reduce or defeat liability with a recognized defense. The exam expects you to distinguish the major doctrines and to know which one a given state applies, because the result for the claimant can swing from full recovery to nothing.

• Contributory negligence — a harsh common-law rule: if the claimant contributed at all to the harm, recovery is barred completely. Only a small number of jurisdictions still apply it.
• Assumption of risk — the claimant knowingly and voluntarily accepted a dangerous situation, such as a spectator hit by a foul ball at a baseball game.

Comparative Negligence and Last Clear Chance

Because contributory negligence is so unforgiving, most states replaced it with comparative negligence.

• Comparative negligence — recovery is reduced by the claimant's own percentage of fault. Two flavors:
  • Pure comparative — the claimant recovers regardless of fault percentage, even at 99% fault (recovers 1%).
  • Modified comparative — the claimant recovers only if at or below a threshold, commonly 50% or 51%; above the threshold, recovery is zero.
• Last clear chance — even a negligent claimant may recover if the defendant had the final, realistic opportunity to avoid the harm and failed to take it.

Independently of these defenses, an insurer may also deny a claim because a policy exclusion applies — the claimant may have a valid tort case yet still find no coverage if the loss is excluded (for example, intentional acts or business pursuits on a personal policy).

Worked Example: Comparative Negligence

A jury awards a claimant $100,000 in damages but finds the claimant 30% at fault.

Now change the facts: the claimant is 60% at fault on the same $100,000 award.

Trap: The exam loves a claimant who is just over a modified threshold (e.g., 51%). Under modified rules that claimant collects nothing, while under pure comparative the same claimant still recovers 49%.

Categories of Damages

When liability is established, the insurer pays damages — but only the kinds the policy and state law allow.

• Compensatory damages — make the claimant whole.
  • Special (economic) damages — documented out-of-pocket loss: medical bills, lost wages, property repair. Provable with receipts.
  • General (non-economic) damages — pain, suffering, disfigurement, loss of consortium. No fixed receipt; assigned by a jury.
• Punitive (exemplary) damages — punish willful or grossly negligent conduct and deter others. Many states prohibit insuring punitive damages as contrary to public policy; some policies expressly exclude them.

Vicarious Liability

Vicarious liability makes one party legally responsible for the negligent acts of another even when the first party did nothing wrong personally.

1. Respondeat superior — an employer is liable for an employee's negligence within the course and scope of employment.
2. Parental liability — parents may be liable for certain acts of a minor child.
3. Permissive-use / vehicle owner liability — a vehicle owner can be liable when a permitted driver causes a loss.

Trap: Respondeat superior applies only within the scope of employment. A worker running a personal errand on a 'frolic' takes the employer out of the chain.

Joint and Several Liability and Punitive-Damage Limits

When two or more defendants combine to cause a single indivisible harm, joint and several liability lets the claimant collect the entire judgment from any one defendant, regardless of that defendant's share of fault. The paying defendant then seeks contribution from the others. Many states have modified this rule so a defendant who is below a fault threshold pays only its proportionate share, limiting deep-pocket exposure.

Insurability of Damage Types

The exam ties damage categories back to what a policy can lawfully cover.

Because an insurer paying a wrongdoer's punishment would defeat the deterrent purpose of punitive damages, several states prohibit insuring them, and many liability forms exclude fines and penalties outright.

Memory aid: Compensatory damages restore; punitive damages punish. Insurance restores, so compensatory damages are squarely covered while punitive coverage is restricted.

Statutes of Limitation and Immunities

Even a meritorious claim dies if filed too late. A statute of limitations bars suit after a set period (often 2-3 years for negligence), and a statute of repose can bar construction-defect claims a fixed number of years after substantial completion regardless of when harm appears. Certain defendants enjoy immunities - sovereign/governmental immunity (often waived up to statutory caps), charitable immunity in a few states, and intra-family immunity in others.

Trap: A claims-made liability policy's retroactive date is not the same as a statute of limitations - one is a coverage term, the other a legal deadline. The exam pairs them as distractors.