Defenses to Negligence

If the negligence of the plaintiff is partially responsible for his harm, his recovery from the defendant may be reduced or barred.  This is called contributory or comparative negligence.  In a small minority of states, the common law contributory negligence rule is followed which states that if the plaintiff contributes to his harm, he cannot recover from the defendant.  In most states, this rule has been rejected because it has been regarded as unjust in situations where the plaintiff’s negligence was slight in comparison to the defendant’s negligence. 

Comparative negligence provides that there should be a comparing of the negligence of the plaintiff and the defendant.  This is the rule followed in most states.  The negligence of the plaintiff would not bar recovery in these states, but would only reduce the plaintiff’s recovery to the extent that the harm was caused by his own negligence.  For example, if the jury decides that the plaintiff has sustained damages of $100,000.00, but that his own negligence was one-fourth the cause of the damage, the plaintiff would only be allowed to recover $75,000.00.  Some states combine the contribu­tory and comparative negligence rules and refuse to allow the plaintiff to recover anything if his negligence is more than 50% of the cause of the harm.

Assumption of risk is a defense which a defendant can raise which basically states that the plaintiff has knowingly assumed the risk of the harm that was caused.  A fan hit by a basketball at a basketball game has assumed the risk of getting hit because it is a known danger that basketballs are thrown into the stands by players (when another player fails to make the catch) from time to time.  However, the doctrine of assumption of risk has been watered down by the doctrine of comparative negligence.  For example, if a plaintiff drives an automobile knowing his brakes are defective and he fails to stop at a railroad crossing and is there­fore hit by a train, comparative or contributory negligence would be more appropriate than assumption of risk, although the plaintiff could arguably be deemed to have assumed the risk of an accident by driving with defective brakes that he knew to be defective.

Kendra took part in a friendly game of touch football.  She had played before and was familiar with football.  Michael was on her team.  In the course of play, Michael bumped into Kendra and knocked her to the ground.  He stepped on her hand, causing injury to a little finger that later required its amputation.  She sued Michael for damages.  He defended on the ground that she had assumed the risk.  Kendra claimed that assumption of risk could not be raised as a defense because the state legislature had adopted the standard of comparative negligence and she was not negligent in taking part in the game.  There was nothing in the fact of participation in the game that would have alerted a reasonable person to the fact that such an injury was foreseeable.  However, having taken part in the game, she voluntarily assumed risks of normal harm that could reasonably be associated with the game.  Her experience with the game showed that she knew what could be expected, and there was no proof that the defendant acted recklessly or caused harm intentionally.  That is, nothing went beyond the reasonable expectations of a reasonable person.  Thus, the comparative negligence statute did not apply, and Kendra claim was barred by her assumption of risk.


Inside Defenses to Negligence