Negligence - Contributory fault

Learning Outcomes

This article examines the affirmative defenses available to a defendant in a negligence action based on the plaintiff's conduct. It details the doctrines of contributory negligence, comparative negligence (both pure and modified), the Last Clear Chance doctrine, and assumption of risk (express and implied). After reading this article, you will be able to distinguish between these defenses, understand their application in different jurisdictions, and analyze how a plaintiff's own fault may reduce or bar their recovery in MBE scenarios.

MBE Syllabus

For the MBE, you must understand how a plaintiff's own conduct can affect their ability to recover in a negligence action. This includes familiarity with both common law defenses and modern comparative fault systems. You should be prepared to:

  • Define and apply the traditional common law defense of contributory negligence.
  • Identify and apply the Last Clear Chance doctrine as a limitation on contributory negligence.
  • Distinguish between pure comparative negligence and modified (partial) comparative negligence systems.
  • Calculate the reduction or barring of a plaintiff's recovery under different comparative fault rules.
  • Analyze the elements of assumption of risk, both express and implied.
  • Determine how comparative fault principles interact with assumption of risk.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. In a jurisdiction following traditional common law contributory negligence, if a plaintiff is found to be even 1% negligent in causing their own injuries, their recovery will be:
    1. Reduced by 1%.
    2. Reduced proportionately based on fault.
    3. Completely barred.
    4. Unaffected, as 1% is de minimis.
  2. The Last Clear Chance doctrine allows a plaintiff to recover despite their own contributory negligence if:
    1. The defendant acted with malice.
    2. The plaintiff's negligence was very slight compared to the defendant's.
    3. The defendant had the final opportunity to avoid the accident but failed to do so.
    4. The plaintiff assumed the risk.
  3. In a pure comparative negligence jurisdiction, a plaintiff found to be 60% at fault for their own injuries totaling 100,000canrecover:a)100,000 can recover: a) 100,000canrecover:a)0
    1. 40,000c)40,000
    2. $60,000
  4. Express assumption of risk typically involves:
    1. Plaintiff implicitly understanding a known danger.
    2. Plaintiff signing a waiver or release.
    3. Plaintiff failing to exercise reasonable care for their own safety.
    4. Defendant having the last clear chance to avoid harm.

Introduction

Once a plaintiff has established a prima facie case for negligence (duty, breach, causation, damages), the defendant may raise affirmative defenses based on the plaintiff's conduct. These defenses, primarily contributory negligence and assumption of risk (and their modern counterpart, comparative negligence), can reduce or completely bar the plaintiff's recovery. Understanding the nuances of these doctrines and how they apply in different jurisdictions is essential for the MBE.

Key Term: Affirmative Defense A defense asserted by the defendant in a lawsuit, which, if proven, will defeat or reduce the plaintiff's claim, even if all allegations in the complaint are true. The defendant bears the burden of proof for an affirmative defense.

Contributory Negligence

At common law, contributory negligence was a complete bar to recovery. If the plaintiff's own negligence contributed in any way, however slight, to their injury, the plaintiff could recover nothing from the negligent defendant.

Key Term: Contributory Negligence A common law doctrine under which a plaintiff whose own negligence contributed to their injury is completely barred from recovering damages from a negligent defendant.

This harsh rule often led to unjust results where a slightly negligent plaintiff was denied any compensation from a significantly more negligent defendant. Due to its severity, only a few jurisdictions still follow the pure contributory negligence doctrine.

Last Clear Chance Doctrine

To mitigate the harshness of contributory negligence, courts developed the Last Clear Chance doctrine. This doctrine permits a contributorily negligent plaintiff to recover if the defendant had the final opportunity to avoid the accident but failed to do so.

Key Term: Last Clear Chance A doctrine, used in contributory negligence jurisdictions, allowing a negligent plaintiff to recover if the defendant had the last opportunity to prevent the harm and failed to exercise reasonable care in doing so.

There are different variations:

  1. Helpless Danger: If the plaintiff, through their own negligence, is in a position of helpless danger (unable to extricate themselves), the defendant is liable if they knew or should have known of the plaintiff's predicament and could have avoided the harm.
  2. Inattentive Danger: If the plaintiff, through their own negligence, is in a position of inattentive danger (could have extricated themselves if paying attention), the defendant is liable only if they actually knew of the plaintiff's predicament and could have avoided the harm.

Worked Example 1.1

Driver A negligently speeds through an intersection. Pedestrian B, also negligent by jaywalking while texting, steps into the intersection and is struck by Driver A. Driver A saw Pedestrian B in time to stop but failed to do so. The jurisdiction follows traditional contributory negligence with the Last Clear Chance doctrine. Can Pedestrian B recover?

Answer: Yes, likely. Pedestrian B was contributorily negligent. However, Driver A arguably had the last clear chance to avoid the accident after seeing Pedestrian B but failed to exercise reasonable care to stop. Depending on whether Pedestrian B was deemed "helpless" or "inattentive," Driver A's liability might depend on whether Driver A knew or should have known of the plaintiff's predicament and could have avoided the harm. Given Driver A saw Pedestrian B, the actual knowledge standard for inattentive danger is likely met, allowing recovery.

Comparative Negligence

Most jurisdictions have replaced the all-or-nothing contributory negligence rule with a comparative negligence system. Under comparative negligence, the plaintiff's negligence reduces their recovery rather than barring it completely (unless the plaintiff's fault exceeds a certain threshold in some systems).

Key Term: Comparative Negligence A doctrine that reduces a plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely.

There are two main types:

Pure Comparative Negligence

In pure comparative negligence jurisdictions, a plaintiff can recover some damages regardless of their own degree of fault. Their recovery is reduced by their percentage of fault.

Example: Plaintiff suffers 100,000indamagesbutisfound90100,000 in damages but is found 90% at fault. Plaintiff can still recover 10,000 (10% of $100,000) from the defendant.

Modified (Partial) Comparative Negligence

In modified comparative negligence jurisdictions, the plaintiff's recovery is reduced by their percentage of fault, but recovery is completely barred if the plaintiff's fault exceeds a certain level. There are two main variations:

  1. "50% Rule" (or "Equal Fault Bar"): Plaintiff recovers nothing if their fault is 50% or greater.
  2. "49% Rule" (or "Less Than" Bar): Plaintiff recovers nothing if their fault is equal to or greater than the defendant's fault (i.e., 50% or more). This is the most common modified approach tested.

Worked Example 1.2

Plaintiff suffers $100,000 damages in an accident. A jury finds Plaintiff 50% at fault and Defendant 50% at fault. (a) In a pure comparative negligence jurisdiction, how much does Plaintiff recover? (b) In a jurisdiction following the "50% Rule," how much does Plaintiff recover? (c) In a jurisdiction following the "49% Rule," how much does Plaintiff recover?

Answer: (a) Pure: Plaintiff recovers 50,000(50,000 (100,000 reduced by 50%). (b) 50% Rule: Plaintiff recovers 0(faultis50(c)490 (fault is 50% or greater). (c) 49% Rule: Plaintiff recovers 0 (fault is equal to or greater than defendant's).

Effect on Other Doctrines

  • Last Clear Chance: This doctrine is largely obsolete in comparative negligence jurisdictions because its function (mitigating the bar of contributory negligence) is served by the apportionment of fault.
  • Wanton/Reckless Conduct: Plaintiff's negligence generally reduces recovery even if the defendant's conduct was reckless, though it typically does not reduce recovery for intentional torts.

Assumption of Risk

Assumption of risk is another defense based on the plaintiff's conduct. It applies when the plaintiff voluntarily encounters a known risk. It can be express or implied.

Key Term: Assumption of Risk A defense alleging that the plaintiff voluntarily consented to encounter a known danger created by the defendant's conduct, thereby relieving the defendant of the duty of care.

Express Assumption of Risk

Plaintiff explicitly agrees, usually in writing (e.g., via a waiver or release), to relieve the defendant of the duty of care owed to the plaintiff. Such agreements are generally enforced unless they violate public policy (e.g., disclaiming liability for reckless conduct, contracts of adhesion where there is gross disparity in bargaining power, waivers for essential public services).

Implied Assumption of Risk

Plaintiff's voluntary encountering of a known risk is inferred from their conduct. The plaintiff must have (1) actually known of the particular risk involved, (2) appreciated its magnitude, and (3) voluntarily chosen to encounter it.

  • Knowledge: Subjective standard – did this plaintiff know and appreciate the risk?
  • Voluntary: Plaintiff must have a viable alternative; encountering the risk due to lack of reasonable alternatives (e.g., the only exit is dangerous) is not voluntary.

Relationship with Comparative Negligence

The status of implied assumption of risk varies in comparative negligence jurisdictions:

  • Abolished/Merged: Many states have abolished implied assumption of risk as a separate defense, merging it into the comparative fault analysis. The focus shifts to whether the plaintiff's conduct in encountering the risk was unreasonable (i.e., negligent). If so, damages are reduced; if reasonable, recovery is not diminished.
  • Retained: Some states retain implied assumption of risk as a complete bar to recovery, separate from comparative negligence.

Express assumption of risk generally remains a complete defense in all jurisdictions, provided the agreement is valid.

Worked Example 1.3

Skier signs a release form at a ski resort explicitly stating they assume all risks of skiing, including negligent slope maintenance. Skier is later injured due to the resort's negligent failure to mark a hidden ditch. The jurisdiction applies comparative negligence and upholds valid express waivers. Can Skier recover?

Answer: Likely no. Skier expressly assumed the risk via the written release. Assuming the release is specific enough to cover this type of negligence and does not violate public policy, it will likely bar Skier's recovery, even in a comparative negligence jurisdiction.

Key Point Checklist

This article has covered the following key knowledge points:

  • Contributory negligence (common law) completely bars plaintiff's recovery if plaintiff is at all negligent.
  • Last Clear Chance doctrine allows a contributorily negligent plaintiff to recover if the defendant had the final opportunity to avoid the harm.
  • Comparative negligence (majority rule) reduces plaintiff's recovery based on their percentage of fault.
  • Pure comparative negligence allows recovery regardless of plaintiff's fault percentage (reduced accordingly).
  • Modified comparative negligence bars recovery if plaintiff's fault reaches/exceeds 50% (depending on the rule).
  • Assumption of risk involves plaintiff voluntarily encountering a known risk.
  • Express assumption of risk (e.g., waivers) is usually a complete bar if valid.
  • Implied assumption of risk requires subjective knowledge and voluntary encountering of the risk; its effect varies (often merged into comparative fault).

Key Terms and Concepts

  • Affirmative Defense
  • Contributory Negligence
  • Last Clear Chance
  • Comparative Negligence
  • Assumption of Risk
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
AdaptiBar
One-time Fee
$395
Assessment Day
One-time Fee
$20-39
BarPrepHero
One-time Fee
$299
Job Test Prep
One-time Fee
$90-350
Quimbee
One-time Fee
$1,199

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal