PastPaperHero | Negligence

Learning Outcomes

This article examines negligence defenses based on plaintiff conduct, including:

the traditional doctrine of contributory negligence and its elements, standards of care for different plaintiffs, and the circumstances in which even slight plaintiff fault bars recovery;
application of the Last Clear Chance doctrine in contributory negligence jurisdictions and how later negligence can restore an otherwise barred claim;
modern pure and modified comparative negligence systems, including calculation of damage awards, operation of 50% and 51% bars, and treatment of multiple defendants;
use of plaintiff statutory violations as negligence per se, limits where statutes protect a class from its own lack of judgment, and distinction from mitigation of damages;
treatment of rescuers, imputed contributory negligence, and the relationship between plaintiff fault and intentional or reckless defendant conduct;
the structure and policy of express and implied assumption of risk, including primary versus secondary assumption, enforceability of waivers, and the impact of comparative fault regimes;
interaction of contributory and comparative negligence with strict and products liability, including product misuse and assumption of known defects;
common bar-exam patterns and reasoning steps for spotting the applicable defense, allocating fault, and predicting whether the plaintiff’s recovery is barred, reduced, or unaffected.

MBE Syllabus

For the MBE, you are required to understand how a defendant may reduce or eliminate liability for negligence based on the plaintiff's conduct, with a focus on the following syllabus points:

Traditional contributory negligence as a complete bar to recovery.
The Last Clear Chance doctrine as a limitation on contributory negligence.
Comparative negligence (pure and modified) and its effect on damage allocation.
Express assumption of risk through waivers and releases and limits on their enforceability.
Implied assumption of risk, including “primary” and “secondary” assumption of risk, and their treatment in comparative fault jurisdictions.
Interaction of these defenses with intentional torts, reckless or wanton conduct, strict liability, and products liability.
Imputed contributory negligence and its limited modern scope.

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.

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.
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
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.
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.

These are typically affirmative defenses, which the defendant must plead and prove. On the MBE, you will often see them raised in answer choices that ask whether the plaintiff “will prevail” or “how much the plaintiff may recover.”

Key Term: Affirmative Defense
A defense that does not deny the elements of the plaintiff’s prima facie case but asserts additional facts that, if proven by the defendant, will bar or reduce the plaintiff’s recovery.

Defenses based on the plaintiff’s conduct fall into three main categories:

Contributory negligence (complete bar in a few jurisdictions).
Comparative negligence / comparative fault (reduction of damages in most jurisdictions).
Assumption of risk (sometimes a complete bar, sometimes merged into comparative fault).

Understanding which regime applies, and how it is implemented, is essential for answering MBE negligence questions.

In addition, some doctrines that once operated as defenses are now treated as part of the duty analysis. For example, “primary” assumption of risk in sports cases is often analyzed as a no-duty or limited-duty rule rather than as an affirmative defense. Nevertheless, on the exam, the facts will give you enough cues to identify which doctrine the question is targeting.

When you read an MBE negligence question that hints the plaintiff may also have been careless, mentally separate two questions:

Did the defendant breach a duty that caused harm?
Even if so, does the plaintiff’s own conduct bar or reduce recovery under the applicable regime?

That second question is where contributory negligence, comparative negligence, and assumption of risk operate.

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.

Only a small minority of jurisdictions still apply pure contributory negligence. The exam usually identifies them explicitly with phrases like “in a jurisdiction that follows traditional contributory negligence rules.”

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 that is a legally contributing cause, cooperating with the defendant's negligence, in bringing about the plaintiff's harm.

Elements and Standard

To succeed with a contributory negligence defense, the defendant must show:

The plaintiff failed to exercise reasonable care for their own safety.
The plaintiff’s negligence was an actual and proximate cause of the injury.

The standard of care is generally the same objective reasonable-person standard used for ordinary negligence, with modifications for certain plaintiffs:

A child’s contributory negligence is judged by the standard of a reasonable child of like age, intelligence, and experience (unless engaged in an adult activity such as driving).
A physically disabled plaintiff is compared to a reasonable person with that disability.
Mental disability usually does not lower the standard.

Merely careless conduct by the plaintiff that has no causal connection to the accident does not count.

Example: If a plaintiff is texting while stopped at a red light and is rear-ended by a speeding taxi, the texting is negligent (especially if a statute prohibits texting while driving), but if it did not cause or contribute to the collision, it is not contributory negligence.

This point is often tested through statutory violations by the plaintiff.

Key Term: Negligence Per Se (by Plaintiff)
The plaintiff’s violation of a safety statute that, if the statute applies, is treated as negligence as a matter of law and can supply the breach element for contributory or comparative negligence, provided that violation is an actual and proximate cause of the plaintiff’s harm.

The same elements used when a defendant is negligent per se apply when the plaintiff is the violator:

The statute must impose a specific duty for the protection of others.
The plaintiff must be within the class the statute is designed to protect.
The accident must be the type of harm the statute was designed to prevent.
The statutory violation must be an actual and proximate cause of the injury.

If those elements are met, the plaintiff’s conduct is negligent as a matter of law. But causation is still essential: if the injury would have occurred even without the violation, negligence per se does not establish contributory negligence.

Exam Tip
In contributory negligence questions, ask:

Did the plaintiff act unreasonably or violate an applicable safety statute?

Did that unreasonable conduct actually contribute to the injury?
If not, the defense fails even in a contributory negligence jurisdiction.

Statutes Designed to Protect the Plaintiff

Contributory negligence is ordinarily a defense even when the defendant’s negligence is established through negligence per se. However, where the statute the defendant violated was designed to protect a particular class of plaintiffs from their own lack of judgment, the plaintiff’s contributory negligence is not a defense to the defendant’s statutory violation.

Classic examples include:

Child labor laws designed to protect minors from dangerous employment.
Safety statutes aimed at protecting children around schools (e.g., school-zone speed limits).
Statutes prohibiting sale of alcohol to minors.

If the defendant’s negligence consists of violating such a statute, a member of the protected class may recover despite being careless, because the statute’s purpose is precisely to prevent injuries arising from that lack of care.

Plaintiff Conduct vs. Mitigation of Damages

Do not confuse contributory negligence with failure to mitigate damages (sometimes called “avoidable consequences”). Contributory negligence focuses on pre-accident conduct that helps cause the harm. Mitigation focuses on what the plaintiff does after the injury arises.

Example: A plaintiff negligently fails to wear a seat belt and is injured in a collision. The failure to wear a seat belt may be treated as contributory or comparative negligence if it increased the injuries. By contrast, if the plaintiff unreasonably refuses needed medical treatment after the accident and their condition worsens, that refusal affects only the portion of damages attributable to the refusal (mitigation), not liability for the initial harm.

On the MBE, questions about seat belts or helmets usually test two issues:

Causation: did the omission actually aggravate the harm?
The applicable regime: is the omission treated as contributory/comparative negligence or only as a mitigation issue?

Statutes in some jurisdictions limit or forbid seat-belt evidence, but the exam rarely relies on such specific statutes unless mentioned in the facts.

Rescuers and Contributory Negligence

Rescuers receive special treatment. Courts recognize that “danger invites rescue,” and that a reasonable person may take significant risks to save others.

A plaintiff may take extraordinary risks in an attempt to rescue another without automatically being considered contributorily negligent. The rescue context is part of the reasonableness analysis; only truly unreasonable rescue conduct will bar recovery.

Typical boundaries:

A rescuer who acts as a reasonably prudent rescuer under the circumstances is not contributorily negligent.
A rescuer who acts in a grossly reckless or wanton way (e.g., jumping into obviously unsurvivable conditions for a minor benefit) may be found negligent.

This protection for rescuers aligns with the foreseeability principle: a negligent defendant is often liable not only to the initial victim but also to rescuers injured in a reasonable rescue attempt.

Imputed Contributory Negligence

Key Term: Imputed Contributory Negligence
A doctrine under which the negligence of one person is attributed to another, so that the second person is treated as contributorily negligent even if personally faultless.

Historically, courts sometimes imputed negligence from:

An employee to an employer (in the employer’s own suit against a third party).
One partner to another in partnership or joint venture cases.
Members of a joint enterprise (e.g., a business trip with shared control over the vehicle).

Imputed contributory (or comparative) negligence arises primarily when:

The plaintiff would be vicariously liable for the negligent actor if the defendant were suing that actor.
Example: An employer sues a third-party driver for damage to the employer’s truck. The employee’s negligence in driving may be imputed to the employer, reducing or barring the employer’s recovery.

Modernly, imputed negligence is disfavored and generally does not apply to:

A child’s claim where a parent was negligent (e.g., negligent supervision).
One spouse’s claim where the other spouse was negligent.
A passenger’s claim where the driver was negligent, absent a special relationship (e.g., partners in a joint venture, or possibly where the passenger had a right to control the driver’s conduct).

On the MBE, unless the facts clearly show an employer–employee or business-partner relationship or explicitly mention imputed negligence, do not impute negligence merely because people are related or traveling together.

Contributory Negligence and Intentional or Reckless Conduct

Contributory negligence interacts differently with more culpable forms of defendant misconduct.

Contributory negligence is never a defense to intentional torts such as battery, assault, or intentional infliction of emotional distress.
It is ordinarily not a defense to willful, wanton, or reckless conduct (sometimes called gross negligence), although a few jurisdictions take a different view.

Exam Warning

If the defendant’s conduct is intentional, do not bar the plaintiff based on contributory or comparative negligence. Instead, look for defenses like consent, self-defense, or assumption of risk.

Example: A driver intentionally swerves toward a pedestrian as a joke and hits them. The pedestrian’s failure to look both ways is not a defense to the driver’s intentional tort.

If the defendant’s conduct is reckless, many jurisdictions still allow comparative fault to reduce recovery, but in strict contributory negligence jurisdictions, plaintiff negligence usually does not bar recovery for reckless conduct.

Last Clear Chance Doctrine

The all-or-nothing nature of contributory negligence was considered harsh, leading courts to develop ameliorating doctrines, most notably the Last Clear Chance doctrine.

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.

The idea is that the defendant’s failure to avoid harm when they had the last clear opportunity supersedes the plaintiff’s earlier negligence. In effect, the defendant’s later negligence is treated as the “final” cause of the injury.

Courts distinguish two common situations:

Helpless Danger:
The plaintiff, through 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 in time and could have avoided the harm by reasonable care.
Inattentive Danger:
The plaintiff is in danger but could have escaped by paying attention and acting.
- Most courts require that the defendant had actual knowledge of the plaintiff's predicament in time and could have avoided the harm.

In either case, the defendant must, after the plaintiff’s negligence has placed them in danger, have had both:

A clear opportunity to avoid the accident, and
A negligent failure to take that opportunity.

Mere simultaneous negligence—where both parties are negligent at the same time with no clearly later opportunity for the defendant to avoid the harm—is not enough.

Worked Example 1.1

Paul negligently parks his car partly in a travel lane. Mary, also negligent, is speeding and not keeping a proper lookout. She sees Paul’s car in plenty of time to brake or swerve safely but continues looking at her phone and plows into the car, injuring Paul.

In a contributory negligence jurisdiction, can Paul recover?

Answer:
Yes, if Last Clear Chance applies. Paul was negligent in creating a hazard but was in a position of helpless danger once parked. Mary had actual (and at least constructive) knowledge of the danger in time to avoid the collision and negligently failed to do so. Paul’s contributory negligence would otherwise bar recovery, but the Last Clear Chance doctrine allows him to recover.

In comparative negligence jurisdictions, Last Clear Chance is usually abolished, and Mary’s failure to avoid the accident is simply weighed as part of the overall allocation of fault.

Contributory Negligence in Practice

Because contributing even 1% of fault can bar recovery, the stakes are high in contributory negligence jurisdictions. On the bar exam:

When a question says “traditional contributory negligence rules,” be alert for any fact suggesting the plaintiff was careless.
Check whether Last Clear Chance might rescue the plaintiff. Look for language such as “saw in time,” “could have avoided,” or “had the opportunity to stop but failed.”

At the same time, remember that plaintiff conduct that occurs after the injury (such as refusing treatment) may reduce damages but does not bar liability; that is a mitigation issue, not contributory negligence.

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.

Under any comparative system, the jury (or judge) determines:

The total amount of damages.
The percentage of fault attributable to each party.

The plaintiff’s ultimate recovery is the total damages multiplied by the defendant’s percentage of fault, subject to any applicable bar.

Two main systems appear on the MBE.

Pure Comparative Negligence

Key Term: Pure Comparative Negligence
A system in which the plaintiff’s damages are reduced by their percentage of fault, regardless of how great that percentage is; even a plaintiff more at fault than the defendant may recover a reduced amount.

In a pure comparative negligence jurisdiction:

A plaintiff 10% at fault recovers 90% of their damages.
A plaintiff 90% at fault still recovers 10% of their damages.

This is the default rule on the MBE if the question does not specify otherwise. Many exam questions simply state, “In a jurisdiction that follows comparative negligence,” and, unless otherwise indicated, you should assume a pure system.

Modified (Partial) Comparative Negligence

Key Term: Modified Comparative Negligence
A system in which the plaintiff’s damages are reduced by their percentage of fault, but the plaintiff is completely barred from recovery when their fault meets or exceeds a specified threshold (usually 50% or 51%).

Two common variants:

50% Bar Rule (“not greater than”): The plaintiff recovers only if their negligence is less than the defendant’s (i.e., 49% or less). At 50% or more fault, the plaintiff is barred.
51% Bar Rule (“not more than”): The plaintiff recovers as long as their negligence is not more than the defendant’s (i.e., 50% or less). At 51% or more fault, the plaintiff is barred.

Revision Tip

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

Worked Example 1.2

Paul, driving negligently, collides with David, who was also driving negligently. Paul suffers $100,000 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 $30,000 from Paul (60% of David's $50,000 damages, representing Paul’s share of fault). Paul can recover $40,000 from David (40% of Paul's $100,000 damages, representing David’s share of fault). The net result is a $10,000 payment from Paul to David. In a pure system, recovery is allowed regardless of the plaintiff's percentage of fault, reduced by that percentage.

Worked Example 1.3

Same facts as Worked Example 1.2, 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 $30,000 from Paul (his damages of $50,000 reduced by his 40% fault). Paul recovers nothing because his negligence (60%) was greater than 50%. In this modified system, Paul is barred entirely.

Multiple Defendants

In modified comparative fault jurisdictions, when more than one defendant is involved, the plaintiff’s fault is typically compared to the combined fault of all defendants.

Example:

Plaintiff: 40% at fault
Defendant A: 30%
Defendant B: 30%

In a 50% bar jurisdiction, the plaintiff’s 40% fault is less than the defendants’ combined 60%, so the plaintiff can recover 60% of their damages, usually with joint and several liability allowing full collection from either defendant, followed by contribution between defendants.

If the plaintiff were 60% at fault and each defendant 20%, the plaintiff’s fault would exceed the combined defendants’ fault; recovery would be barred.

Worked Example 1.4

Plaintiff is injured in a three-car collision. A jury finds:

Plaintiff: 50% at fault
Defendant 1: 30% at fault
Defendant 2: 20% at fault

Plaintiff’s total damages are $200,000.

a) In a pure comparative negligence jurisdiction with joint and several liability, what can Plaintiff recover, and from whom?
b) In a 50% bar modified comparative negligence jurisdiction, assuming fault is compared to all defendants combined, what is the result?

Answer:
a) In a pure comparative negligence jurisdiction, Plaintiff’s damages are reduced by Plaintiff’s 50% fault. Plaintiff can recover 50% of $200,000, i.e., $100,000. Because joint and several liability applies, Plaintiff may collect the entire $100,000 from either Defendant 1 or Defendant 2 (or partly from each), leaving the paying defendant to seek contribution from the other.

b) In a 50% bar modified comparative negligence jurisdiction, Plaintiff’s 50% fault is compared to the defendants’ combined 50%. Under a “not greater than 50%” rule, Plaintiff’s fault is not greater than the combined defendants’ fault, so recovery is allowed. Plaintiff again recovers $100,000 (50% of $200,000). If the jurisdiction instead had a 49% bar rule (fault must be less than the defendants’ fault), Plaintiff would be barred at 50%.

Many bar exam questions test this subtle distinction between “less than” and “not greater than” wording.

Comparative Negligence and Willful/Wanton or Intentional Conduct

Comparative negligence rules generally:

Reduce the plaintiff’s recovery even when the defendant’s conduct was willful, wanton, or reckless (unless a statute says otherwise).
Do not apply to intentional torts. A plaintiff’s negligence is not a defense to an intentional battery or intentional false imprisonment.

Some jurisdictions, as a matter of policy, refuse to reduce damages for mere negligence where the defendant’s conduct is far more culpable (e.g., drunk driving at an extreme level). The exam, however, generally adopts the simpler rule: comparative negligence applies to reckless misconduct but not to intentional torts.

Effect on Last Clear Chance

In comparative negligence jurisdictions, the Last Clear Chance doctrine is almost always abolished. The facts that previously would have triggered Last Clear Chance instead simply increase the defendant’s percentage of fault in the comparative analysis.

If you see Last Clear Chance language in a question that clearly indicates a comparative negligence jurisdiction, treat it as additional evidence of defendant fault, not as a separate doctrine.

Comparative Negligence and Strict/Product Liability

On the MBE, plaintiff fault can matter even in strict liability contexts:

In strict products liability, the plaintiff’s ordinary negligence (e.g., failing to discover a defect or using a product in a reasonably foreseeable but careless way) ordinarily reduces recovery under comparative fault but does not completely bar it.
A plaintiff’s assumption of a known defect (knowingly using a product they know to be defective) can still operate as a complete bar in many jurisdictions, often analyzed as assumption of risk.
In strict liability for abnormally dangerous activities, many comparative negligence jurisdictions simply apply ordinary comparative principles; contributory negligence jurisdictions often allow recovery unless the plaintiff knowingly and unreasonably subjected themselves to the risk.

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 and implied. In comparative fault jurisdictions, implied assumption of risk is often folded into the comparative negligence analysis, while express assumption of risk often remains a complete bar.

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 for ordinary negligence if they meet certain conditions.

Key Term: Express Assumption of Risk
Assumption of risk where the plaintiff clearly agrees in words (usually a written waiver or release) that the defendant will not be liable for specified risks, typically arising from the defendant’s ordinary negligence.

Courts typically ask two questions:

Is the waiver clear and unambiguous in describing the risks and the scope of the release?
Is the waiver enforceable as a matter of public policy?

Common limits on enforcement:

A waiver cannot disclaim liability for reckless, wanton, or intentional misconduct.
A waiver is more likely to be invalid when:
- There is a significant disparity in bargaining power (e.g., employer–employee).
- The service is essential or of great public importance (e.g., medical care, common carriers, utilities).
- The clause is buried or hidden in fine print or is otherwise procedurally unconscionable.

By contrast, exculpatory clauses are more likely to be enforced for voluntary, recreational activities such as skiing, rock climbing, or skydiving.

Exam Tip
Focus on scope: even a valid waiver only covers the risks reasonably within its terms. A waiver for “injuries arising from ordinary negligence during horseback riding” would not protect a stable from liability for a hidden, known defect in a viewing platform that collapses before the rider mounts the horse.

Worked Example 1.5

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. Because skydiving is a voluntary, recreational activity and the waiver clearly covers negligence, a court is likely to enforce it. However, if SkyDive Inc.’s conduct rose to the level of recklessness or intentional wrongdoing, the waiver would generally not be enforced as to that conduct.

When analyzing exculpatory clauses on the exam:

Check whether the clause clearly covers the type of risk that materialized.
Ask whether the relationship between the parties makes enforcement unfair (e.g., a hospital patient signing a “we are not liable for negligence” clause).

Implied Assumption of Risk

The plaintiff's assumption of risk is implied from their conduct rather than from an express agreement.

Key Term: Implied Assumption of Risk
Assumption of risk inferred from the plaintiff’s conduct—entering or remaining in a risky situation with actual knowledge of the specific risk and voluntarily choosing to confront it.

To establish implied assumption of risk, the defendant must prove:

Knowledge of Risk:
The plaintiff must have actually known of the specific risk involved. This is a subjective inquiry: what this plaintiff actually appreciated, not what a reasonable person would have known.
Voluntary Encounter:
The plaintiff must have voluntarily chosen to encounter the risk. There is no voluntariness if the plaintiff had no reasonable alternative, acted under economic compulsion, or was under duress.

Example: A worker ordered by a supervisor to use a visibly defective ladder, on pain of losing their job, may not be held to have voluntarily assumed the risk.

Common scenarios include:

Riding with a visibly intoxicated driver.
Entering a clearly marked danger zone for convenience rather than necessity.
Continuing to use equipment after being told it is defective and dangerous.

Primary vs. Secondary Assumption of Risk

Many courts further distinguish between:

Key Term: Primary Assumption of Risk
A form of assumption of risk in which the defendant owes no duty (or only a limited duty) regarding certain ordinary risks of an activity, so the plaintiff’s claim fails at the duty stage rather than as an affirmative defense.

Key Term: Secondary Assumption of Risk
A form of assumption of risk in which the defendant owes a duty and breaches it, but the plaintiff knowingly and unreasonably encounters the risk created by that breach; traditionally a complete defense but often merged into comparative fault.

Primary assumption of risk arises when a risk is a normal part of an activity (e.g., being hit by a foul ball at a baseball game, collisions in contact sports). The defendant has no duty to eliminate these ordinary risks, although they must not increase them unreasonably. If only primary assumption of risk is present, the plaintiff’s negligence claim fails for lack of duty or breach.
Secondary assumption of risk occurs when the defendant is negligent but the plaintiff chooses to proceed in the face of that known negligence (e.g., riding with a drunk driver after being warned). Traditionally, secondary assumption of risk was a complete defense, but under modern comparative fault regimes, it usually just reduces the plaintiff’s recovery.

Worked Example 1.6

A spectator attends a professional baseball game, sits in an unscreened section behind third base, and is hit by a routine foul ball despite paying attention. The spectator sues the team owner for failing to screen all seats.

Answer:
The owner will likely prevail based on primary implied assumption of risk. Being hit by a foul ball is a normal, obvious risk of attending a baseball game in an unscreened area. The stadium has a limited duty to provide some screened seats and reasonable warnings, but it is not required to eliminate the ordinary risk of foul balls for spectators who choose unscreened seating.

If, however, the stadium removed all netting, created abnormally close seating, or failed to protect areas where hitters regularly smash line drives at head height, a court might find that the owner increased the risks beyond those ordinarily associated with the sport, making negligence possible.

Effect on Comparative Negligence

The interaction between assumption of risk and comparative negligence differs by jurisdiction:

Traditional / Contributory Negligence Jurisdictions:
- Both express and implied assumption of risk (secondary assumption) remain complete bars to recovery.
Modern Majority / Comparative Negligence Jurisdictions:
- Express assumption of risk generally remains a separate, complete defense if valid.
- Unreasonable implied (secondary) assumption of risk is usually merged into comparative fault: the plaintiff’s decision to confront a known risk is treated as negligence, reducing but not necessarily barring recovery.
- Reasonable implied assumption of risk (e.g., reasonable risk-taking in an emergency) may either be treated as no fault at all or folded into the comparative analysis, depending on jurisdiction.

Exam Tip
If the question says the jurisdiction has adopted comparative negligence and is silent about assumption of risk, treat unreasonable implied assumption of risk as comparative fault, not as an automatic bar, unless the facts clearly involve an express waiver.

Worked Example 1.7

Dana knows her friend Victor has been drinking heavily but chooses to ride as a passenger in Victor’s car rather than pay for a cab. Victor, driving negligently, crashes and injures Dana. The jurisdiction follows pure comparative negligence and has merged implied assumption of risk into comparative fault.

Answer:
Dana can recover from Victor, but her damages will be reduced under comparative negligence. Her decision to ride with an obviously intoxicated driver is an unreasonable implied assumption of risk and will be treated as part of her comparative fault (for example, a jury might find Dana 30% at fault and Victor 70% at fault).

Additional Example: Implied Assumption and Comparative Fault

Worked Example 1.8

A ski resort posts clear signs at the top of a closed run: “Trail Closed—Avalanche Danger.” Barriers block access, but skiers can ski around them with effort. The resort negligently failed to secure the area despite known instability in the snowpack. Sam, an experienced skier who reads the signs, decides to duck the rope “for a thrill,” is caught in a small slide, and suffers $200,000 in injuries. A jury finds the resort 40% at fault for negligently failing to secure the slope and Sam 60% at fault for knowingly skiing the closed run. The jurisdiction follows pure comparative negligence and has merged implied assumption of risk into comparative fault.

Answer:
Sam assumed a known risk in an unreasonable way, but that assumption is treated as comparative negligence, not a complete bar. His total damages are $200,000, reduced by his 60% fault, so he recovers 40% of $200,000 = $80,000. The resort pays $80,000, reflecting its 40% share of responsibility.

If the jurisdiction instead treated implied assumption of risk as a complete defense, Sam would recover nothing.

Assumption of Risk and Products/Strict Liability

In products liability and strict liability cases:

Ordinary comparative negligence (such as failure to inspect a product) typically reduces damages but does not bar them.
Assumption of risk—using a product or engaging in an activity knowing of a specific defect or extraordinary danger—can operate as a complete defense.

Common scenarios:

Continuing to use an industrial machine after being warned that the safety guard is broken and that use is dangerous.
Removing obvious safety devices (e.g., disabling a lawnmower’s shutoff switch) and being injured as a direct result.

Worked Example 1.9

A manufacturer sells a power saw with an adequate warning: “Do not use without blade guard; serious injury can result.” The saw is otherwise not defective. Paula removes the guard so she can make faster cuts. A piece of wood kicks back, causing a serious hand injury that would have been prevented by the guard. Paula sues under strict products liability, alleging that the saw was unreasonably dangerous.

Answer:
Paula’s claim will fail. The product itself was not defective; the manufacturer provided an adequate warning and a guard. Paula knowingly removed a safety device and encountered a known risk. Her conduct is best characterized as assumption of risk or, in comparative-fault terms, as negligent misuse of the product. In many jurisdictions, such conduct either completely bars strict liability (assumption of risk) or, at minimum, drastically reduces recovery under comparative fault.

Worked Example: Plaintiff Statutory Violation and Causation

Worked Example 1.10

In a contributory negligence jurisdiction, a statute prohibits texting while driving. After a study showed that most accidents in the jurisdiction were caused by texting drivers, the legislature enacted the statute. The plaintiff is stopped at a red light and, while still stopped, looks down to send a text message. A speeding taxicab fails to stop and rear-ends the plaintiff’s car. The plaintiff sues the cab driver, who argues that the plaintiff’s texting in violation of the statute is contributory negligence that bars recovery.

Is the defense likely to succeed?

Answer:
No. Even assuming the statute applies to the plaintiff and his violation is negligence per se, his texting was not an actual cause of the collision. He was stopped at a red light when struck from behind; the cause was the cab driver’s speeding and failure to stop, not the plaintiff’s texting. Contributory negligence requires that the plaintiff’s negligence be a legal cause of the injury. Without causation, the defense fails.

This example illustrates that even in strict contributory negligence jurisdictions, plaintiff fault without causal connection does not bar recovery.

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 the plaintiff is even slightly at fault and that fault causally contributes to the harm.
The plaintiff’s conduct is measured by a reasonableness standard, adjusted for children and certain disabilities, and must be an actual and proximate cause of the injury.
Statutory violations by the plaintiff can constitute negligence per se, but only if the statute applies and the violation is a cause of the injury; statutes protecting a class from its own lack of care may block contributory negligence as a defense.
Rescuers are treated favorably; only clearly unreasonable rescue efforts will constitute contributory negligence.
Imputed contributory negligence is disfavored and generally limited to certain vicarious relationships (e.g., employer–employee, business partners), and is not imputed merely because of family or passenger relationships.
Last Clear Chance allows a negligent plaintiff in a contributory negligence jurisdiction to recover if the defendant had the final clear opportunity to avoid the harm and negligently failed to do so.
Comparative negligence (modern majority) apportions damages based on relative fault rather than imposing an all-or-nothing bar.
Pure comparative negligence allows recovery reduced by the plaintiff's fault, regardless of percentage; modified systems bar recovery when the plaintiff’s fault meets or exceeds a threshold (50% or 51%), sometimes by comparing to the combined fault of multiple defendants.
Comparative fault is not a defense to intentional torts, and contributory/comparative negligence do not excuse intentional misconduct; they generally do reduce recovery where the defendant is merely reckless.
In cases with multiple defendants and joint and several liability, the plaintiff’s fault is deducted “off the top,” and each defendant is typically liable for the remainder in proportion to their share of fault, subject to jurisdiction-specific limitations.
In strict liability and products liability, plaintiff negligence usually reduces damages, while assumption of a known defect or dangerous condition can still operate as a complete defense.
Assumption of risk involves the plaintiff knowingly and voluntarily encountering a known risk; knowledge must be actual and subjective, and voluntariness is absent where no reasonable alternative exists.
Express assumption of risk (waiver) can be a complete bar to ordinary negligence claims if clear and consistent with public policy, but cannot generally waive liability for reckless or intentional conduct or for essential public services.
Implied assumption of risk requires subjective knowledge and a voluntary choice to face the risk; unreasonable implied assumption is often treated as comparative fault in modern jurisdictions.
Primary assumption of risk functions as a no-duty or limited-duty rule for ordinary risks of certain activities (e.g., sports), while secondary assumption of risk addresses knowingly confronting risks created by the defendant’s negligence.
In comparative negligence jurisdictions, Last Clear Chance is usually abolished and unreasonable implied assumption of risk is folded into the comparative fault analysis, while express waivers generally remain separately enforceable.

Key Terms and Concepts

Affirmative Defense
Contributory Negligence
Negligence Per Se (by Plaintiff)
Last Clear Chance
Imputed Contributory Negligence
Comparative Negligence
Pure Comparative Negligence
Modified Comparative Negligence
Assumption of Risk
Express Assumption of Risk
Implied Assumption of Risk
Primary Assumption of Risk
Secondary Assumption of Risk

Negligence - Defenses