Negligence - Defenses

Learning Outcomes

This article examines the primary defenses available in negligence actions. It details the traditional doctrine of contributory negligence, including the Last Clear Chance rule, the modern approaches of pure and modified comparative negligence, and the principles of express and implied assumption of risk. After reading this article, you will be able to distinguish between these defenses and apply them to various factual scenarios presented in MBE questions, identifying when a plaintiff's recovery may be barred or reduced.

MBE Syllabus

For the MBE, you are expected to understand how a defendant may reduce or eliminate liability for negligence based on the plaintiff's conduct. This includes:

  • Understanding the traditional 'all-or-nothing' bar of contributory negligence.
  • Applying the Last Clear Chance doctrine as a limitation on contributory negligence.
  • Distinguishing between pure and modified (partial) comparative negligence systems and calculating the effect on damage awards.
  • Analyzing express assumption of risk through contractual waivers or explicit consent.
  • Evaluating implied assumption of risk based on the plaintiff's knowledge and voluntary encountering of a known danger.
  • Recognizing how these defenses interact with different types of tortious conduct by the defendant (e.g., negligence vs. intentional torts).

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 contributory negligence rules, a plaintiff whose own negligence contributed to their injury is generally:
    1. Able to recover damages reduced by their percentage of fault.
    2. Completely barred from recovering any damages.
    3. Able to recover fully unless their fault exceeded the defendant's fault.
    4. Able to recover only nominal damages.
  2. A driver sees a pedestrian negligently standing in the road ahead but has sufficient time and opportunity to avoid hitting the pedestrian by swerving. The driver fails to swerve and hits the pedestrian. In a contributory negligence jurisdiction, which doctrine might allow the pedestrian to recover despite their own negligence?
    1. Comparative negligence
    2. Assumption of risk
    3. Last Clear Chance
    4. Res ipsa loquitur
  3. In a pure comparative negligence jurisdiction, a plaintiff found to be 90% at fault for their own injuries in an accident where the defendant was 10% at fault can recover:
    1. Nothing.
    2. 10% of their total damages.
    3. 90% of their total damages.
    4. 100% of their total damages.
  4. A spectator attends a baseball game and is hit by a foul ball. Which defense is the stadium owner most likely to successfully assert?
    1. Contributory negligence
    2. Comparative negligence
    3. Implied assumption of risk
    4. Express assumption of risk

Introduction

Even if a plaintiff establishes a prima facie case of negligence (duty, breach, causation, damages), the defendant may avoid or reduce liability by proving certain defenses based on the plaintiff's conduct. Historically, the primary defense was contributory negligence, which completely barred recovery. Modernly, most jurisdictions have replaced this with a comparative negligence system. Another significant defense is assumption of risk, where the plaintiff knowingly and voluntarily encountered the danger.

Contributory Negligence

At common law, contributory negligence was a complete bar to recovery. If the plaintiff's own negligence, however slight, contributed to their injury, they could not recover any damages from a negligent defendant.

Key Term: Contributory Negligence Conduct on the part of the plaintiff that falls below the standard of care a reasonable person would exercise for their own protection and which is a legally contributing cause, cooperating with the defendant's negligence, in bringing about the plaintiff's harm.

This "all-or-nothing" rule was considered harsh, leading courts to develop ameliorating doctrines, most notably the Last Clear Chance doctrine.

Last Clear Chance Doctrine

This doctrine permitted a plaintiff to recover despite their contributory negligence if the defendant had the last clear opportunity to avoid the accident and failed to do so.

Key Term: Last Clear Chance A doctrine, used in contributory negligence jurisdictions, allowing a plaintiff to recover despite their own negligence if the defendant had the final opportunity to prevent the harm but failed to use reasonable care to do so.

  • Helpless Danger: If the plaintiff, through their prior 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 situation and could have avoided the harm.
  • Inattentive Danger: If the plaintiff, through their own negligence, is in a position of danger but is merely inattentive (could have extricated themselves if paying attention), most courts hold the defendant liable only if they had actual knowledge of the plaintiff's predicament and could have avoided the harm.

Exam Warning Contributory negligence is generally not a defense to intentional torts or to wanton and willful misconduct by the defendant.

The harshness of the contributory negligence bar led most jurisdictions to adopt comparative negligence systems.

Comparative Negligence

Comparative negligence (or comparative fault) rejects the all-or-nothing approach of contributory negligence. Instead, the trier of fact weighs the plaintiff's negligence against the defendant's and reduces the plaintiff's damages accordingly.

Key Term: Comparative Negligence A tort doctrine whereby the plaintiff's recovery is reduced (or sometimes barred) in proportion to the plaintiff's degree of fault in causing the injury, rather than being completely barred by any contributory negligence.

There are two main forms:

  1. Pure Comparative Negligence: Plaintiff's damages are reduced by the proportion of their fault, regardless of how great that proportion is. Even a plaintiff found 99% at fault can recover 1% of their damages. (This is the default rule assumed on the MBE unless otherwise specified).
  2. Modified (Partial) Comparative Negligence: Plaintiff's recovery is reduced by their percentage of fault, but they are completely barred from recovery if their fault exceeds a certain threshold.
    • 50% Bar Rule: Plaintiff recovers only if their negligence is less than the defendant's negligence (i.e., 49% or less).
    • 51% Bar Rule: Plaintiff recovers only if their negligence is not more than the defendant's negligence (i.e., 50% or less).

Revision Tip Always check the call of the question to see which system (contributory or type of comparative) applies. If unspecified, assume pure comparative negligence.

In comparative negligence jurisdictions, the Last Clear Chance doctrine is generally abolished. The factors previously considered under that doctrine are now simply part of the overall fault allocation.

Assumption of Risk

Assumption of risk is another defense based on the plaintiff's conduct. It applies when the plaintiff voluntarily and knowingly assumes the risk of harm arising from the defendant's negligent or reckless conduct.

Key Term: Assumption of Risk A defense asserting that the plaintiff knowingly and voluntarily encountered a risk of harm created by the defendant's conduct, thereby relieving the defendant of the duty of care owed regarding that risk.

There are two main types:

Express Assumption of Risk

The plaintiff explicitly agrees, usually in writing, to relieve the defendant of the duty of care owed to the plaintiff. Such agreements (exculpatory clauses) are generally enforceable unless they violate public policy (e.g., attempting to disclaim liability for reckless conduct, or where there is a significant disparity in bargaining power).

Implied Assumption of Risk

The plaintiff's assumption of risk is implied from their conduct. To establish implied assumption of risk, the defendant must prove:

  1. Knowledge of Risk: The plaintiff must have actually known of the specific risk involved. Subjective awareness is required, not just what a reasonable person would have known.
  2. Voluntary Encounter: The plaintiff must have voluntarily chosen to encounter the risk. There is no voluntary assumption if the plaintiff had no reasonable alternative or acted under duress.

Effect on Comparative Negligence:

  • Traditional View: In many jurisdictions, implied assumption of risk remained a complete bar to recovery even after the adoption of comparative negligence, especially for "primary" assumption of risk scenarios (where defendant owes no duty or a limited duty regarding inherently risky activities, like being hit by a foul ball at a baseball game).
  • Modern Trend/Majority View: Most comparative negligence jurisdictions have merged "unreasonable" implied assumption of risk into the comparative fault analysis. If the plaintiff unreasonably assumed a known risk, their conduct is treated as a form of fault that reduces, but does not necessarily bar, recovery. "Reasonable" implied assumption of risk (where plaintiff reasonably encountered a known risk) may still completely bar recovery in some jurisdictions or simply be factored into the comparative analysis in others.

Worked Example 1.1

Paul, driving negligently, collides with David, who was also driving negligently. Paul suffers 100,000indamages,andDavidsuffers100,000 in damages, and David suffers 50,000 in damages. A jury finds Paul 60% at fault and David 40% at fault. The jurisdiction follows pure comparative negligence. What can each party recover?

Answer: David can recover 30,000fromPaul(6030,000 from Paul (60% of David's 50,000 damages). Paul can recover 20,000fromDavid(4020,000 from David (40% of Paul's 100,000 damages). In a pure system, recovery is allowed regardless of the plaintiff's percentage of fault, reduced by that percentage. Often, the amounts are offset, resulting in a net payment from Paul to David of $10,000.

Worked Example 1.2

Same facts as Worked Example 1.1, but the jurisdiction follows a modified comparative negligence system where a plaintiff recovers nothing if their fault is 50% or greater. What can each party recover?

Answer: David can recover 30,000fromPaul(hisdamagesof30,000 from Paul (his damages of 50,000 reduced by his 40% fault). Paul recovers nothing because his negligence (60%) was greater than 50%.

Worked Example 1.3

Peter signs a waiver before going skydiving with SkyDive Inc. The waiver explicitly states that Peter "assumes all risks associated with skydiving, including those caused by SkyDive Inc.'s negligence." Due to SkyDive Inc.'s negligent maintenance of the parachute, it fails to open properly, and Peter is injured. Can Peter recover from SkyDive Inc.?

Answer: Likely no. Peter expressly assumed the risk of SkyDive Inc.'s negligence via the waiver. Unless the waiver is found to violate public policy (which is less likely for inherently risky recreational activities where waivers are common), it will likely bar Peter's claim based on negligence. However, if the conduct was reckless or intentional, the waiver might not be enforced.

Key Point Checklist

This article has covered the following key knowledge points:

  • Defenses based on plaintiff's conduct can bar or reduce recovery in negligence actions.
  • Contributory negligence (common law) completely bars recovery if plaintiff is even slightly at fault.
  • Last Clear Chance mitigates contributory negligence if defendant had the final opportunity to avoid harm.
  • Comparative negligence (modern majority) apportions damages based on relative fault.
  • Pure comparative negligence allows recovery reduced by plaintiff's fault, regardless of percentage.
  • Modified comparative negligence bars recovery if plaintiff's fault exceeds a threshold (50% or 51%).
  • Assumption of risk involves plaintiff knowingly and voluntarily encountering a known risk.
  • Express assumption of risk (waiver) is often enforced unless against public policy.
  • Implied assumption of risk requires subjective knowledge and voluntary encounter; its effect varies (complete bar vs. merged into comparative fault).

Key Terms and Concepts

  • 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