Chapter 11

DEFENSES IN NEGLIGENCE ACTIONS

This chapter examines various defenses that can be asserted by a defendant in a negligence action. The most important concepts are:

• Contributory negligence:  At common law, the doctrine of contributory negligence applies. The doctrine provides that a plaintiff who is negligent, and whose negligence is a proximate cause of his injuries, is totally barred from recovery.
  • Last Clear Chance:  The doctrine of “Last Clear Chance” acts as a limit on the contributory negligence defense. If, just before the accident, D had an opportunity to prevent the harm, the existence of this opportunity (the last clear chance) wipes out the effect of P’s contributory negligence.
• Comparative negligence:  Most states have replaced contributory negligence with “comparative negligence.” The comparative negligence system rejects the all-or-nothing approach of contributory negligence, and instead divides the liability between P and D in proportion to their relative degrees of fault. P’s recovery is reduced by a proportion equal to the ratio between his own negligence and the total negligence contributing to the accident. Assumption of risk:  P is said to have “assumed the risk” of certain harm if she has voluntarily consented to take her chances that the harm will occur. Where such an assumption is shown, the plaintiff is, at common law, completely barred from recovery.
  • Express and implied:  P can assume the risk either “expressly” or “implicitly.” The latter occurs when P indicates by her conduct (rather than by her express words) that she knows of the risk in question, and agrees to bear that risk herself.
  • Effect of comparative negligence statute:  The existence of a comparative negligence statute eliminates certain types of assumption of risk, but maintains the “core” variety as a defense. Thus if P’s voluntary agreement to bear a certain risk prevents D from ever having any duty to P at all, the existence of a comparative negligence statute does not change this.
• Immunities:  The common law recognizes certain immunities from negligence actions, including: (1) various intra-family immunities (e.g., between spouses, and between parent and child); (2) immunity of charities; and (3) sovereign immunity, i.e., immunity possessed by governmental entities. Each of these immunities has been abolished today in most states.