13.3 Tort Defenses and Effects of Insurance

Once a prima facie tort is on the table, the file turns to defenses and to insurance. Domain 2 names contributory negligence, comparative negligence, assumption of risk, and the effects of insurance. The same cluster is where a paralegal should also be ready to label consent, self-defense, privilege, statutes of limitation and repose, and workers' compensation as an exclusive remedy. None of these doctrines is a fifth negligence element. They are reasons a complete-looking claim still dies, shrinks, or is paid by someone other than the named defendant.

Plaintiff's negligence: contributory versus comparative

Contributory negligence is the plaintiff's own failure to use reasonable care for the plaintiff's safety, which is a cause of the plaintiff's harm. In a pure contributory-negligence jurisdiction — a small minority of American jurisdictions — any contributory negligence is a complete bar. A plaintiff who is 1% at fault recovers nothing. Last clear chance is the classic common-law softening: if the defendant had the last clear chance to avoid the injury and failed to take it, a contributorily negligent plaintiff may still recover. Know the label, know that it is the minority rule, and do not apply a complete bar in a stem that says the forum is comparative.

Comparative negligence (the majority approach) reduces the plaintiff's recovery by the plaintiff's percentage of fault.

• Pure comparative negligence: the plaintiff recovers even if 99% at fault; the award is reduced by that share. A $100,000 loss with a 70% at-fault plaintiff yields $30,000.
• Modified comparative negligence — 50% bar ("less than"): the plaintiff recovers only if the plaintiff's fault is less than the defendant's. A 50–50 plaintiff is barred. A 49% plaintiff recovers 51% of damages.
• Modified comparative negligence — 51% bar ("not greater than"): the plaintiff recovers if the plaintiff's fault is not greater than the defendant's. A 50–50 plaintiff still recovers half. A 51% plaintiff is barred.

Read the stem. If it says "modified comparative" without a number, know that both 50% and 51% bars exist and that the 50–50 case is the discriminator. Joint and several liability and several-only regimes affect how a solvent defendant pays another defendant's share; that is allocation, not a complete defense. Some states compare the plaintiff to each defendant; some compare the plaintiff to the defendants combined. Unless the stem supplies the local rule, do not invent it. Seat-belt and helmet nonuse is often treated as comparative fault or as a damages-reduction / mitigation issue rather than as a complete bar; again, follow the stem.

Comparative fault is about the plaintiff's role in causing the accident. It is not the same as mitigation (section 13.4), which is about increasing the loss after the accident.

Assumption of risk

Assumption of risk is the plaintiff's voluntary encounter with a known risk.

Express assumption is a written or oral waiver. Courts enforce a clear waiver of ordinary negligence for recreational activities more readily than a waiver of gross negligence, recklessness, or intentional torts, and more readily against an adult than a child. Public-policy limits can void a waiver for hospitals, common carriers, and essential public services. A go-kart or ski-ticket release is the usual valid-waiver story; a hospital admissions form that waives medical negligence is the usual invalid-waiver story. The waiver's scope must cover this risk. A release for "skiing" does not waive a drunk shuttle-bus driver in the parking lot unless the language honestly reaches that risk.

Implied assumption requires that the plaintiff actually knew of the particular risk and voluntarily proceeded. Sitting in an unscreened seat at a baseball game (the foul-ball risk) is the classic example. Many comparative-fault jurisdictions have merged implied assumption of risk into the comparative-fault percentage rather than treating it as a complete bar. Express waivers often still operate as a bar if they are valid. On the exam, name express versus implied before you decide bar versus percentage reduction.

Consent, self-defense, and privilege

These are primarily intentional-tort defenses.

Consent is willingness that the conduct occur. It may be express or implied from custom and circumstances (contact sports; a crowded subway; a handshake). Consent to a medical procedure is not consent to a substantially different procedure (that gap is battery). Fraud, duress, or incapacity can vitiate consent. Scope matters: consent to a tap on the shoulder is not consent to a beating; consent to a fistfight is not consent to a knife. A patient who signs a consent form still has not consented to a surgeon who operates drunk or who leaves a known-unnecessary object, depending on how the jurisdiction draws the battery/negligence line — flag the issue; do not overclaim.

Self-defense allows reasonable force to prevent an imminent harmful or offensive contact or confinement. Deadly force requires a reasonable belief of imminent death or serious bodily harm. There is generally no duty to retreat in one's dwelling (the castle doctrine). Jurisdictions split on retreat in public places. Defense of others tracks a reasonable belief that the third person could have used self-defense. Defense of property never justifies deadly force solely to protect property. Spring guns and other deadly mechanical traps are the classic illegal property defense. The shopkeeper's privilege is a specific detention privilege: reasonable suspicion, reasonable manner, reasonable time.

Privilege is the broader family. Public necessity is a complete privilege to damage property to avert a public disaster (a firebreak). Private necessity is incomplete: the actor may enter or use the property to save life or more valuable property but must pay for actual harm (Vincent v. Lake Erie Transportation Co.). Arrest privileges, judicial and legislative absolute privilege in defamation, and qualified privilege for good-faith statements to one with a common interest all belong on this shelf. Name the privilege. Do not treat every official act or every workplace email as a free pass.

Time bars: limitation and repose

A statute of limitations is the time to file after the claim accrues. Accrual is typically the date of injury. Many jurisdictions delay accrual under a discovery rule: the clock starts when the plaintiff knew or reasonably should have known of the injury and its likely cause. Medical-malpractice and legal-malpractice statutes are often shorter than the general personal-injury period. Tolling (minority, unsound mind, defendant's fraudulent concealment, sometimes absence from the jurisdiction) can pause the clock. Filing a complaint generally stops the limitations clock; service rules are a separate trap.

A statute of repose is a drop-dead date measured from an act or event — the sale of the product, the substantial completion of an improvement to real property, the last professional service — not from discovery. Repose can extinguish a claim before the plaintiff is injured or discovers the injury. A building completed in year 0 with a 10-year repose can bar a year-12 collapse even if no one could have discovered the defect earlier. Do not call a repose period a "longer statute of limitations." They are different clocks, started by different events, and they serve different policies (repose is about closing the books on old conduct).

Workers' compensation as exclusive remedy

Workers' compensation is a no-fault statutory system that pays an employee for a work-related injury in exchange for generally barring a tort suit against the employer. That is the exclusive-remedy rule. The employee need not prove employer negligence; the employer need not face a full common-law damages verdict (pain and suffering and punitives are typically off the table in the comp system). Typical exceptions: the employer failed to carry required coverage; the injury was the product of intentional employer misconduct (a true intent to injure, not mere awareness of a risk, in many states); the defendant is a third party (the manufacturer of a defective machine; a negligent driver not employed by the same employer). Co-employee immunity is common but statutory. Going-and-coming and horseplay rules decide whether the injury is "arising out of and in the course of" employment.

Flag exclusivity at intake before anyone drafts a negligence complaint against the employer. The third-party products or vehicle case can still proceed; the comp carrier will almost always assert a lien or subrogation claim against that recovery.

Effects of insurance

Insurance does not create the tort. Duty, breach, intent, and defect exist — or fail — whether or not anyone bought a policy. Proof that the defendant is insured is not an element of negligence, and in many courtrooms it is not even admissible on the liability case in chief. Insurance funds the defense and the indemnity and therefore shapes the case: who hires counsel, when a policy-limits demand is made, who sits at mediation, and who has a lien on the check.

Liability (third-party) insurance pays amounts the insured becomes legally obligated to pay to a third person, plus defense costs. Auto liability, commercial general liability (CGL), professional liability (malpractice), and the liability section of a homeowners policy are in this family. First-party insurance pays the insured's own loss: collision, comprehensive, health, disability, property, uninsured/underinsured motorist (UM/UIM). A car-wreck file often has both: the defendant's liability policy and the plaintiff's health and UM/UIM coverage.

Duty to defend versus duty to indemnify. The duty to defend is typically broader. It is triggered by a potential for coverage in the complaint (the eight-corners or four-corners idea in many states: the complaint plus the policy). The insurer must ordinarily defend the entire suit if any claim is potentially covered. The duty to indemnify is narrower: it pays only covered judgments or settlements, up to policy limits, after coverage is determined. Intentional-act exclusions, late notice, and "business pursuits" exclusions are classic indemnity fights that do not always erase the duty to defend at the pleading stage.

An insurer may issue a reservation of rights — it defends while preserving the right to deny indemnity on uncovered claims. A reservation of rights can create a conflict that, in some jurisdictions, entitles the insured to independent counsel at the insurer's expense. Coverage fights often proceed in a parallel declaratory-judgment action. A time-limited policy-limits demand that the insurer settle within limits can later support a bad-faith claim if the insurer unreasonably refuses and an excess verdict follows. Bad faith is not the underlying tort; it is an extra-contractual claim against the insurer.

Subrogation lets the insurer who paid step into the insured's shoes and pursue the tortfeasor (or take a lien on the insured's recovery). Expect a health insurer's or workers'-compensation carrier's claim against a third-party settlement. Made-whole and common-fund doctrines can reduce the carrier's share; they are state-specific. Do not disburse a settlement without running the lien list.

Collateral source rule. At common law, payments from a source collateral to the tortfeasor — health insurance, disability benefits, sick leave, Medicare — do not reduce the plaintiff's recovery against the defendant. The defendant does not get a windfall because the plaintiff was insured. Many states have modified or abolished the rule by statute, especially for medical write-offs and billed-versus-paid amounts. On a national exam, know the classic rule and flag state variation. Do not assume the chargemaster medical-bill number in the file is the recoverable number without checking the forum's collateral-source statute.

Worked path. A delivery driver, 30% at fault, is hit by a 70%-at-fault motorist. In a pure or 51% modified comparative state, the driver recovers 70% of damages. In a contributory minority jurisdiction, the claim is barred. If the crash happened on the job, workers' compensation is the exclusive remedy against the employer, but the third-party motorist can still be sued; the comp carrier will assert subrogation. The motorist's liability insurer has a duty to defend the motorist and a duty to indemnify a covered judgment, and it may send a reservation of rights if an intentional-act allegation appears. The injured driver's health insurer is a collateral source; whether those payments are deducted depends on the forum. A waiver signed at a go-kart track the prior weekend is express assumption of risk for that recreational activity — it does not waive this intersection crash. If the same driver waits seven years to sue on a two-year limitations statute, the claim is time-barred even if every element of negligence is perfect; if a products statute of repose ran from the machine's first sale twelve years ago, a newly discovered defect may already be dead.