Negligence - Limitations on liability and special rules of l...

Learning Outcomes

This article explains negligence limitations and special rules of liability, including:

• How contributory and comparative negligence doctrines modify or bar a plaintiff’s recovery, how to calculate adjusted damages, and how to spot jurisdictional variations on common MBE patterns.
• How express and implied assumption of risk function as complete or partial defenses, interact with comparative fault systems, and are limited by statutes and public‑policy constraints.
• When vicarious liability, joint and several liability, contribution, indemnity, and joint enterprise principles apply, and how they redistribute responsibility and financial exposure among multiple defendants in exam fact patterns.
• How special negligence doctrines—such as negligent infliction of emotional distress, pure economic loss, and statutory damage caps—limit the types and amounts of recoverable damages.
• How to read statutory modifications in MBE questions, reconcile them with common‑law rules on defenses and damages, and select the answer that best reflects the specified jurisdiction.
• How to systematically approach multi‑issue negligence questions by identifying plaintiff conduct, defendant relationships, applicable defenses, and any overlapping limitations on liability in a clear order of analysis.

MBE Syllabus

For the MBE, you are required to understand limitations on negligence liability and special rules of liability, with a focus on the following syllabus points:

• Contributory negligence and comparative negligence (pure and modified).
• Assumption of risk as a defense, including its statutory limitations.
• Vicarious liability (especially respondeat superior) and nondelegable duties.
• Joint and several liability, contribution, and indemnity among multiple tortfeasors.
• Special negligence doctrines: negligent infliction of emotional distress and pure economic loss.
• Statutory reforms affecting negligence defenses and damages (e.g., comparative fault, collateral source, punitive damages caps).

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 contributory negligence jurisdiction, what is the effect if a plaintiff is found to have been even slightly negligent?
   1. The plaintiff’s damages are reduced in proportion to fault.
   2. The plaintiff’s claim is completely barred.
   3. The defendant must prove gross negligence.
   4. The plaintiff can recover only nominal damages.
2. Which of the following is most likely to defeat a defense of assumption of risk?
   1. The risk was open and obvious.
   2. The plaintiff expressly agreed in writing to the risk.
   3. The plaintiff had no reasonable alternative but to accept the risk.
   4. The plaintiff was aware of the risk and voluntarily accepted it.
3. Under joint and several liability, if a plaintiff is awarded $100,000 and one defendant is 60% at fault and the other 40%, how much can the plaintiff collect from the 40% defendant?
   1. $0
   2. $40,000
   3. $60,000
   4. Up to $100,000
4. Which of the following is a typical statutory modification to common law negligence defenses?
   1. Replacing contributory negligence with comparative negligence.
   2. Eliminating assumption of risk as a defense in all cases.
   3. Making all negligence strict liability.
   4. Abolishing vicarious liability.

Introduction

Negligence liability is not absolute. The common law and statutes impose important limitations and special rules that restrict, share, or alter liability and damages. These doctrines are frequently tested on the MBE, often in combination. You must be able to:

• Identify which limitation applies (e.g., contributory negligence vs. assumption of risk).
• Apply it to modify or bar the plaintiff’s recovery.
• Allocate responsibility among multiple defendants.

Key Term: Contributory Negligence
A doctrine under which any fault by the plaintiff, however slight, is a complete bar to recovery in a negligence action.

Key Term: Comparative Negligence
A rule that reduces the plaintiff’s damages by their percentage of fault, rather than barring recovery entirely.

Key Term: Assumption of Risk
A defense to negligence where the plaintiff, aware of a specific risk, voluntarily accepts it, either expressly or impliedly.

Key Term: Vicarious Liability
Liability imposed on one party for the torts of another, based on their relationship (e.g., employer for employee’s negligence within the scope of employment).

Key Term: Joint and Several Liability
A rule where each defendant is individually responsible for the whole judgment, allowing the plaintiff to collect the full amount from any one defendant.

Key Term: Contribution
The right of a defendant who pays more than their share of a judgment to recover the excess from other jointly liable defendants.

Key Term: Indemnity
The right of one party to shift the entire loss to another, often available where liability is vicarious or based on a contractual agreement.

The sections that follow expand on each of these, and add special rules such as negligent infliction of emotional distress, pure economic loss, and statutory damage limitations.

Contributory Negligence

At common law, if a plaintiff’s own negligence contributed in any way to their injury, recovery was completely barred. Only a few jurisdictions still follow this harsh rule, but it is still fair game on the MBE.

Contributory negligence requires:

• Plaintiff’s failure to exercise reasonable care for their own safety, and
• A causal connection between that failure and the injury.

If both are present, the defendant is not liable, even if the defendant’s negligence was substantial and the plaintiff’s negligence was minimal.

Last Clear Chance

To soften the strictness of contributory negligence, some contributory-negligence jurisdictions recognize the last clear chance doctrine.

Key Term: Last Clear Chance
A doctrine allowing a negligent plaintiff to recover if the defendant had the last clear opportunity to avoid the harm but failed to do so.

Typical pattern:

• Plaintiff is in a position of danger (often helpless).
• Defendant knows or should know of the danger.
• Defendant still fails to use reasonable care to avoid injuring the plaintiff.

On the MBE, if you are told the jurisdiction follows contributory negligence and last clear chance, ask: “Did the defendant have a fresh opportunity to avoid the harm after the plaintiff’s negligence had already placed them in danger?”

Other limits on contributory negligence:

• It generally does not bar intentional or reckless (wanton/willful) torts.
• Young children and certain legally protected plaintiffs (e.g., very young or mentally incapacitated) may not be found contributorily negligent under the applicable standard of care.

Comparative Negligence

Most jurisdictions have replaced contributory negligence with comparative negligence. Under comparative fault, the plaintiff’s damages are reduced in proportion to their degree of fault but are not automatically barred.

Two main variations are tested:

• Pure comparative negligence: Plaintiff can recover even if more at fault than the defendant; recovery is reduced by plaintiff’s percentage of fault.
• Modified comparative negligence: Plaintiff is barred from recovery if their fault reaches a threshold (usually 50% or 51%), depending on the jurisdiction’s rule.

In either system, the trier of fact assigns percentages of fault to each negligent party, including the plaintiff. The judgment against each defendant may then be adjusted according to comparative-fault and joint-and-several rules in that jurisdiction.

Comparative negligence often interacts with other doctrines:

• It usually replaces implied assumption of risk: the plaintiff’s risk-taking conduct is folded into their percentage of fault.
• It may limit contribution among defendants (e.g., contribution based on relative fault rather than equal shares).

Assumption of Risk

Assumption of risk focuses on the plaintiff’s consent to the risk, rather than on their failure to exercise due care.

To establish assumption of risk, a defendant generally must show:

1. The plaintiff knew of the specific risk, and
2. The plaintiff voluntarily accepted that risk.

Assumption of risk can be:

Key Term: Express Assumption of Risk
An agreement (often written) in which the plaintiff expressly accepts the risk of the defendant’s negligence, such as a waiver or exculpatory clause.

Key Term: Implied Assumption of Risk
The plaintiff’s voluntary exposure to a known risk inferred from conduct, not from an explicit agreement.

Examples of express assumption of risk include waivers signed before engaging in recreational activities (e.g., ski-lift tickets, rock-climbing gyms). Courts generally enforce such clauses if:

• The risk is within the scope of the clause.
• The language is clear and conspicuous.
• Public policy does not forbid it (e.g., many jurisdictions disallow exculpatory clauses for gross negligence, intentional torts, or essential public services).

Implied assumption of risk arises when the plaintiff actually understands the risk and nonetheless proceeds—for example, sitting in exposed bleachers at a baseball game, knowing balls frequently enter the stands.

Limitations:

• No assumption of risk where the plaintiff had no reasonable alternative (e.g., economic compulsion, emergency).
• Children and some incapacitated persons may lack capacity to assume risk.
• Statutes sometimes abolish or narrow assumption-of-risk defenses (e.g., in workplace injuries or certain consumer-protection contexts).

Relationship to comparative negligence: In many comparative-negligence jurisdictions, implied assumption of risk is treated as part of the plaintiff’s comparative fault rather than a separate complete defense; express assumption of risk usually remains a complete bar if valid.

Negligent Infliction of Emotional Distress (NIED)

Historically, courts refused to allow recovery for pure emotional distress in negligence cases without physical impact. Modern law allows recovery in specific situations.

Key Term: Negligent Infliction of Emotional Distress (NIED)
A negligence claim for serious emotional harm, allowed only under defined circumstances such as zone-of-danger, bystander, or special-relationship cases.

Zone-of-Danger Rule

Key Term: Zone of Danger
The area in which the plaintiff was at immediate risk of physical impact from the defendant’s negligence.

Under the zone-of-danger rule, a plaintiff can recover for NIED if:

• The plaintiff was within the zone of danger of physical impact, and
• The threat of impact caused severe emotional distress (often with a required physical symptom such as nausea, insomnia, or miscarriage).

This is analogous to assault: apprehension of imminent harm, but without actual contact.

Bystander Recovery

Some jurisdictions allow recovery where a bystander:

• Is closely related to the person physically injured (usually spouse, parent, child).
• Is present at the scene and contemporaneously perceives the injury.
• Suffers serious emotional distress as a result.

These proximity requirements are frequently tested: relational, geographic, and temporal closeness are all important.

Special Relationships

Independent of zone-of-danger or bystander rules, NIED is also available in limited special-relationship contexts, such as:

• Negligent mishandling of a corpse.
• Negligent communication of death or serious illness.
• Certain physician–patient or laboratory-report relationships.

Most jurisdictions still require some objective evidence of distress (physical symptoms or medical diagnosis).

Pure Economic Loss

Key Term: Pure Economic Loss
Financial loss unaccompanied by any physical injury to person or property.

The general rule in negligence is that a plaintiff cannot recover for pure economic loss in the absence of personal injury or property damage. For example:

• A negligent driver damages a bridge, causing a nearby business to lose customers during repairs. The business cannot recover its lost profits under ordinary negligence rules.

Exceptions may exist where:

• There is a special professional relationship (e.g., accountant to client), or
• Statutes create a cause of action (e.g., certain securities or consumer-protection statutes).

On the MBE, if you see purely financial harm with no physical or property damage and no special relationship, expect no negligence recovery.

Vicarious Liability and Respondeat Superior

Key Term: Respondeat Superior
A doctrine under which an employer is vicariously liable for torts committed by an employee acting within the scope of employment.

Key Term: Frolic and Detour
A “detour” is a minor deviation from work that remains within the scope of employment; a “frolic” is a substantial personal deviation that falls outside the scope.

The key vicarious liability relationships include:

• Employer–employee (respondeat superior).
• Principal–agent (when the agent is a servant rather than an independent contractor).
• Partners and joint venturers in furtherance of the enterprise.

An employer is vicariously liable if:

• The tortfeasor is a employee, not an independent contractor; and
• The tort occurs within the scope of employment.

Scope of employment factors:

• The conduct is of the kind the employee was hired to perform.
• It occurs substantially within time and space limits of employment.
• It is motivated, at least in part, by a purpose to serve the employer.

A detour (e.g., stopping for coffee on a delivery route) will usually keep the employer liable. A frolic (e.g., taking a long personal trip unrelated to work) breaks the connection; the employer is not liable.

Employees’ intentional torts generally fall outside the scope unless:

• Force is authorized or foreseeable (e.g., bouncer, security guard).
• The tort arises from friction typical of the business (e.g., debt collection).
• The employee is furthering the employer’s interests in an overzealous way.

Key Term: Independent Contractor
A person who contracts to perform services but is not subject to the principal’s detailed control over the manner of performance; principals are generally not vicariously liable for their torts.

Exceptions where a principal may be vicariously liable for an independent contractor’s negligence include:

• Nondelegable duties (e.g., maintaining safe premises for invitees).
• Abnormally dangerous activities (e.g., blasting with explosives).

Key Term: Joint Enterprise
An agreement among two or more persons to pursue a common purpose, with equal right to control; each member may be vicariously liable for torts committed in furtherance of the enterprise.

Joint and Several Liability, Contribution, and Indemnity

When multiple defendants cause an indivisible injury (e.g., a single car crash), many jurisdictions apply joint and several liability.

Under joint and several liability:

• The plaintiff may recover the full amount of damages from any one defendant.
• The paying defendant can then seek contribution from other at-fault defendants.

Some comparative-negligence jurisdictions have limited or abolished joint and several liability, especially for defendants whose percentage of fault is below a statutory threshold.

Contribution rules vary:

• Equal shares (pro rata) in some jurisdictions.
• Comparative contribution based on relative fault in others.

Key Term: Indemnity
Allows one party (often a vicariously liable party) to shift 100% of the liability to another (e.g., employer indemnifying from employee’s active negligence, or a contractual indemnitor).

Other important multiple-defendant doctrines include:

• Alternative liability (multiple negligent defendants, but only one could have caused the harm—liability is shifted unless they exonerate themselves).
• Concert of action (defendants acting together are each liable for the entire harm).

Damages Limitations: Collateral Source and Punitive Damages

Key Term: Collateral Source Rule
The traditional rule that payments to the plaintiff from outside sources (e.g., insurance) do not reduce the damages recoverable from the defendant, and are inadmissible at trial.

Many states have modified the collateral-source rule by statute to avoid double recovery, particularly in medical-malpractice cases. MBE questions may specify that a statute allows evidence of collateral payments or mandates an offset.

Key Term: Punitive Damages
Damages awarded not to compensate, but to punish and deter particularly egregious conduct, such as willful, wanton, or malicious acts.

Punitive damages:

• Are generally not available for ordinary negligence.
• May be awarded for reckless or malicious conduct, or for certain intentional torts.
• Are limited by due process: the U.S. Supreme Court has indicated that, as a rule of thumb, punitive awards should be within a single-digit ratio to compensatory damages.

These doctrines limit how much a plaintiff ultimately recovers, even when liability is established.

Statutory Modifications

Many states have enacted negligence-related statutes that modify common-law principles. Common examples:

• Comparative fault statutes replacing contributory negligence.
• Caps on damages, especially noneconomic or punitive damages.
• Dram shop acts, imposing liability on bars or restaurants that serve visibly intoxicated patrons who then injure third parties.
• Guest statutes, limiting suits by non-paying automobile passengers (less common today).
• Workers’ compensation schemes, making employer liability exclusive and generally precluding tort suits by employees against employers for workplace injuries.

On the MBE, you must apply any statutory rule given in the question, even if it differs from the traditional common law.

Special Rules for Multiple Defendants

When more than one party is at fault, additional rules govern their relationships:

• Satisfaction and release: A full satisfaction of the judgment from one defendant typically discharges the others; a release of one tortfeasor may or may not release others depending on jurisdiction and the document’s terms.
• Contribution actions: A defendant who has paid more than their fair share may bring a separate contribution action or assert contribution in the original suit where allowed.
• Indemnity based on contract (e.g., landlord–tenant or manufacturer–retailer agreements) or common law (e.g., vicariously liable parties).

These internal allocation rules do not change the plaintiff’s rights under joint and several liability unless the jurisdiction has expressly modified it.

Worked Example 1.1

A plaintiff is injured in a car accident. The jury finds the plaintiff 20% at fault and the defendant 80% at fault. The jurisdiction follows pure comparative negligence. The plaintiff’s damages are $100,000. How much can the plaintiff recover?

Answer:
The plaintiff’s recovery is reduced by their percentage of fault. $100,000 × 80% = $80,000.

Worked Example 1.2

In a contributory negligence state, a pedestrian crosses the street against a red light and is hit by a speeding driver. The jury finds both parties negligent. Can the pedestrian recover?

Answer:
No. Any fault by the plaintiff completely bars recovery in a contributory negligence jurisdiction, absent a doctrine such as last clear chance.

Worked Example 1.3

Two defendants are found jointly and severally liable for $90,000 in damages. The plaintiff collects the full amount from Defendant A. What recourse does Defendant A have?

Answer:
Defendant A can seek contribution from Defendant B for their share of fault, according to the jurisdiction’s contribution rules (equal shares or proportionate to fault).

Worked Example 1.4

A ski resort requires customers to sign a clearly worded waiver releasing the resort from liability for its own negligence in maintaining ski slopes. A skier signs the waiver, then is injured when she falls on an obviously icy patch on an intermediate run. The jurisdiction enforces reasonable exculpatory clauses for recreational activities. Can the skier recover from the resort in negligence?

Answer:
Probably not. The skier expressly assumed the risk of the resort’s negligence by signing a valid waiver in a recreational context. The waiver constitutes express assumption of risk and is a complete bar to recovery.

Worked Example 1.5

A plaintiff is nearly struck by a negligently driven bus and jumps out of the way. He is not physically impacted but later develops insomnia and nausea from fear. The jurisdiction follows the zone-of-danger rule and requires a physical symptom of distress. Can he recover for NIED?

Answer:
Yes. He was within the zone of danger of physical impact and suffered physical symptoms of emotional distress (insomnia and nausea). This satisfies the NIED requirements in most zone-of-danger jurisdictions.

Worked Example 1.6

A corporation’s negligent discharge of pollutants into a river forces a nearby factory to shut down for a week to repair its water-intake system. A downstream marina, which relies on boaters using the river, loses business during that week but suffers no property damage. The marina sues the corporation in negligence for lost profits only. Is recovery likely?

Answer:
No. The marina has suffered pure economic loss (lost profits) without any physical injury to person or property. Under the pure economic loss rule, it generally cannot recover in negligence absent a special relationship or statutory cause of action.

Worked Example 1.7

A delivery driver, while on his route, stops a few blocks off his assigned path to buy coffee. While exiting the parking lot, he negligently hits a pedestrian. Is the employer vicariously liable?

Answer:
Yes. A brief coffee stop is a minor deviation (a detour), not a substantial frolic. The driver remains within the scope of employment, so the employer is vicariously liable under respondeat superior.

Exam Warning

In MBE questions, always identify:

• Whether the jurisdiction is contributory or comparative negligence.
• Whether joint and several liability applies.
• Whether any statutory modification or special doctrine (e.g., NIED, pure economic loss) is specified.

Revision Tip

When multiple defendants are involved, separate:

• The plaintiff’s right to recover (joint and several liability).
• The defendants’ rights among themselves (contribution and indemnity).

Summary

Negligence liability is limited and shaped by a network of doctrines. Contributory and comparative negligence adjust or bar recovery based on the plaintiff’s fault. Assumption of risk focuses on the plaintiff’s voluntary exposure to known dangers. Vicarious liability extends responsibility to employers and other principals, while joint and several liability and contribution rules determine how multiple tortfeasors share the burden. Special doctrines such as NIED and the pure economic loss rule limit the scope of negligence claims, and statutory reforms further alter defenses and damages. Applying these doctrines correctly on the MBE requires careful attention to the jurisdiction’s specified rules and the precise relationships among the parties.

Key Point Checklist

This article has covered the following key knowledge points:

• In contributory negligence jurisdictions, any plaintiff fault generally bars recovery, subject to doctrines like last clear chance.
• Under comparative negligence, the plaintiff’s damages are reduced by their percentage of fault; in modified systems, recovery is barred once plaintiff’s fault reaches the stated threshold.
• Assumption of risk—express or implied—can bar or reduce recovery; in many comparative-fault jurisdictions, implied assumption is folded into comparative negligence.
• NIED claims are limited to zone-of-danger, bystander, and special-relationship categories, often requiring a physical symptom of distress.
• Pure economic loss is not recoverable in negligence absent personal injury, property damage, or a special relationship/statutory cause of action.
• Vicarious liability (respondeat superior) makes employers liable for employees’ torts within the scope of employment, but typically not for independent contractors, subject to exceptions.
• Joint and several liability allows the plaintiff to recover the full judgment from any one tortfeasor; contribution and indemnity allocate responsibility among defendants.
• The collateral source rule traditionally prevents reduction of damages for outside payments, but many statutes modify it; punitive damages are limited to egregious conduct and constrained by due process.
• Statutory reforms—such as comparative-fault statutes, damage caps, dram shop laws, and workers’ compensation—can significantly alter common-law negligence defenses and remedies.

Key Terms and Concepts

• Contributory Negligence
• Last Clear Chance
• Comparative Negligence
• Assumption of Risk
• Express Assumption of Risk
• Implied Assumption of Risk
• Negligent Infliction of Emotional Distress (NIED)
• Zone of Danger
• Pure Economic Loss
• Vicarious Liability
• Respondeat Superior
• Frolic and Detour
• Independent Contractor
• Joint Enterprise
• Joint and Several Liability
• Contribution
• Indemnity
• Collateral Source Rule
• Punitive Damages