8.2 Defenses, Damages, and Vicarious Liability
Key Takeaways
- Pure contributory negligence bars ALL recovery if the plaintiff is even 1% at fault; in 2026 only Alabama, Maryland, North Carolina, Virginia, and Washington D.C. apply it.
- Comparative negligence reduces recovery by the plaintiff's fault percentage — pure (recover at any fault), modified 50% bar, or modified 51% bar.
- Damages divide into compensatory (special/economic and general/non-economic), punitive (often uninsurable by state law), and nominal.
- Vicarious liability holds one party responsible for another's torts — respondeat superior makes employers liable for employees acting within the scope of employment.
- Joint and several liability lets a plaintiff collect the ENTIRE judgment from any one defendant, who then seeks contribution from the others.
Defenses That Bar or Reduce Recovery
Contributory Negligence (the harsh rule)
Under pure contributory negligence, a plaintiff who is even 1% at fault recovers nothing. As of 2026, only five jurisdictions apply it: Alabama, Maryland, North Carolina, Virginia, and the District of Columbia. A limited escape hatch is the last clear chance doctrine, which lets a contributorily negligent plaintiff still recover if the defendant had the final opportunity to avoid the harm.
Example: A jaywalker who is 5% at fault recovers $0 in a contributory state.
Comparative Negligence (the majority rule)
Recovery is reduced by the plaintiff's fault percentage.
| System | Recovery Rule |
|---|---|
| Pure comparative | Recover even at 99% fault, reduced by the % |
| Modified — 50% bar | Recover only if 50% or LESS at fault |
| Modified — 51% bar | Recover only if 50% or less; barred at 51% |
Worked example (pure): $100,000 damages, plaintiff 80% at fault -> recovers $20,000.
Worked example (51% bar): $100,000 damages, plaintiff 51% at fault -> recovers $0; at exactly 50% they would recover $50,000.
Assumption of Risk
Bars recovery when the plaintiff knew of a specific danger, appreciated its nature, and voluntarily accepted it — a spectator struck by a foul ball, or a skier injured on the slope.
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:
Categories of Damages
Damages are the money a court awards to a successful claimant. The exam tests these categories closely.
- Compensatory — Special (economic): quantifiable losses — medical bills, lost wages, repair costs.
- Compensatory — General (non-economic): pain and suffering, emotional distress, loss of consortium.
- Punitive (exemplary): awarded for gross negligence or willful misconduct to punish the wrongdoer; many states bar insuring them as against public policy.
- Nominal: a token award (e.g., $1) when a right is violated but actual loss is trivial.
| Damage Type | Purpose | Insurable? |
|---|---|---|
| Special compensatory | Reimburse economic loss | Yes |
| General compensatory | Reimburse non-economic loss | Yes |
| Punitive | Punish/deter | Often NO |
| Nominal | Recognize a violated right | N/A (trivial) |
Trap: Punitive damages are frequently excluded or barred by statute from coverage. If a scenario asks what the liability policy will NOT pay, punitive damages is a common answer.
Vicarious Liability
Vicarious liability makes one party responsible for the torts of another based on their relationship, not on the responsible party's own carelessness.
Respondeat Superior
Under respondeat superior ("let the master answer"), an employer is liable for an employee's torts committed within the scope of employment.
| Element | Requirement |
|---|---|
| Relationship | Employee, NOT an independent contractor |
| Scope | Acting in furtherance of the job |
Covered: a delivery driver who crashes while delivering. Not covered: a personal frolic and detour or an intentional crime outside the job. With an independent contractor, the hiring party controls only the result, so vicarious liability generally does not attach (the control test).
Other Vicarious Situations
- Parent-child: negligent supervision or entrustment; many parental responsibility laws cap damages ($5,000-$25,000 commonly).
- Vehicle owner: negligent entrustment, the family purpose doctrine, and permissive-use statutes.
Joint and Several Liability
When multiple defendants cause one indivisible harm, joint and several liability lets the plaintiff collect the entire judgment from any single defendant, who then seeks contribution from the others.
Example: $300,000 in damages; Defendant A is 60% at fault, B is 30%, and C is 10% but judgment-proof. The plaintiff collects the full $300,000 from A, who pursues B and absorbs C's uncollectible share.
Under respondeat superior, an employer is vicariously liable for an employee who is:
Strict and Absolute Liability
Beyond negligence, two no-fault doctrines impose liability even when reasonable care was used.
Strict liability is a common-law doctrine applying in three classic settings, and limited defenses (such as product misuse or assumption of risk) may still apply:
- Abnormally dangerous activities - blasting, storing explosives, crop dusting.
- Defective products - everyone in the chain of distribution.
- Wild or known-dangerous animals.
Absolute liability is imposed by statute with essentially no defenses; the prime example is workers' compensation, where the employer pays for job-related injuries regardless of fault and the employee gives up the right to sue.
Trap: If a question pairs "no fault AND no defenses" with workers' compensation, the intended answer is absolute liability; strict liability still allows limited defenses.
Choosing the Right Defense
The correct defense depends on the jurisdiction's fault rule, so read scenario questions for the state setting:
| Setting | Effect of plaintiff fault |
|---|---|
| Contributory state | Even 1% plaintiff fault is a complete bar - strongest defense |
| Pure comparative | Reduces recovery only, never a complete bar |
| Modified comparative | Bars recovery once the plaintiff crosses the 50% or 51% threshold |
| Assumption of risk | Complete defense in any system - plaintiff consented to the danger |
The last clear chance doctrine is a counter-defense that revives a contributorily negligent plaintiff's claim when the defendant had the final opportunity to avoid the harm.
Exam takeaway: Compute comparative-fault recoveries quickly, remember punitive damages are often uninsurable, and match the relationship (employer-employee) to vicarious liability and the activity or product to strict liability.