Negligence - Limitations on liability and special rules of liability

Learning Outcomes

After reading this article, you will be able to identify and apply the main limitations on negligence liability and recognize special rules that modify or share liability. You will understand how doctrines like contributory negligence, assumption of risk, vicarious liability, and statutory reforms affect negligence claims, and be able to analyze MBE-style questions involving these concepts.

MBE Syllabus

For MBE, you are required to understand the circumstances under which negligence liability is limited, shared, or altered by special rules. This article covers:

  • The doctrines of contributory negligence and comparative negligence.
  • The defense of assumption of risk (express and implied).
  • Vicarious liability and joint and several liability.
  • Statutory modifications to common law negligence rules.
  • Special rules for sharing liability among multiple defendants.
  • The impact of statutes on traditional negligence defenses.

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 100,000andonedefendantis60a)100,000 and one defendant is 60% at fault and the other 40%, how much can the plaintiff collect from the 40% defendant? a) 100,000andonedefendantis60a)0
    1. 40,000c)40,000
    2. 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 several important limitations and special rules that restrict, share, or alter liability. These doctrines and statutory reforms are frequently tested on the MBE. Understanding how contributory negligence, comparative negligence, assumption of risk, vicarious liability, and joint and several liability operate is essential for analyzing negligence questions.

Contributory Negligence

At common law, if a plaintiff’s own negligence contributed in any way to their injury, recovery was completely barred. This is a harsh rule, and only a few states still follow it.

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.

Comparative Negligence

Most jurisdictions have replaced contributory negligence with comparative negligence. Under this approach, the plaintiff’s damages are reduced in proportion to their degree of fault.

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

There are two main types:

  • Pure comparative negligence: Plaintiff can recover even if more at fault than the defendant.
  • Modified comparative negligence: Plaintiff is barred from recovery if their fault is equal to or greater than the defendant’s (usually 50% or 51% threshold).

Assumption of Risk

If a plaintiff knowingly and voluntarily accepts a risk, they may be barred from recovery.

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

Assumption of risk can be:

  • Express: Plaintiff agrees in writing or orally to accept the risk.
  • Implied: Plaintiff’s conduct shows voluntary acceptance of a known risk.

Assumption of risk is not a defense where public policy forbids it (e.g., common carriers, statutory protections).

Vicarious Liability

Vicarious liability holds one party responsible for the negligence of another due to their relationship.

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).

Common examples:

  • Respondeat superior: Employers are liable for employees’ negligence committed in the scope of employment.
  • Partnerships and joint ventures: Each partner or joint venturer is liable for torts committed in furtherance of the business.

Joint and Several Liability

When multiple defendants cause an indivisible injury, each is liable for the entire amount.

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.

Some jurisdictions have limited or abolished joint and several liability, especially in cases where a defendant’s fault is below a certain threshold.

Statutory Modifications

Many states have enacted statutes that modify or abolish traditional negligence defenses. These statutes may:

  • Replace contributory negligence with comparative negligence.
  • Limit or abolish joint and several liability.
  • Restrict or abolish assumption of risk as a defense in certain contexts.
  • Provide for apportionment of damages among multiple defendants.

Special Rules for Multiple Defendants

When more than one party is at fault, liability may be apportioned or shared. Defendants may seek contribution or indemnity from each other, depending on the jurisdiction and the facts.

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.

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. 100,000×80100,000 × 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.

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, depending on the jurisdiction’s rules.

Exam Warning

In MBE questions, always check the jurisdiction’s rule (contributory vs. comparative negligence) and whether joint and several liability applies. Do not assume all states follow comparative negligence or joint and several liability.

Revision Tip

If a question involves multiple defendants, consider whether the plaintiff can recover the full amount from any one defendant and whether contribution or indemnity is available among defendants.

Summary

Negligence liability is limited by doctrines such as contributory negligence, comparative negligence, assumption of risk, and vicarious liability. Statutes may further modify or abolish these defenses. When multiple defendants are involved, joint and several liability, contribution, and indemnity rules determine how liability is shared or shifted. Always identify the applicable rules in the jurisdiction tested.

Key Point Checklist

This article has covered the following key knowledge points:

  • Contributory negligence bars recovery for any plaintiff fault in some states.
  • Comparative negligence reduces damages in proportion to plaintiff’s fault; may be pure or modified.
  • Assumption of risk (express or implied) can bar or reduce recovery if the plaintiff knowingly accepts a risk.
  • Vicarious liability holds one party liable for another’s negligence based on their relationship.
  • Joint and several liability allows the plaintiff to recover the full judgment from any defendant; contribution and indemnity may apply among defendants.
  • Statutory reforms may alter or abolish traditional negligence defenses and rules for sharing liability.

Key Terms and Concepts

  • Contributory Negligence
  • Comparative Negligence
  • Assumption of Risk
  • Vicarious Liability
  • Joint and Several Liability
  • Contribution
  • Indemnity
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