These are the defenses that answer a negligence claim by pointing at the plaintiff. Contributory negligence is the older rule: a plaintiff whose own carelessness contributed to the injury recovers nothing at all. Comparative negligence replaced it almost everywhere because that result was too harsh, and it instead reduces the award in proportion to the plaintiff's share of the fault.
Rule
- Contributory negligence. Any negligence by the plaintiff that contributed to the harm is a complete bar. A small number of jurisdictions still follow it.
- Last clear chance. The traditional softener. A contributorily negligent plaintiff still recovers where the defendant had the final realistic opportunity to avoid the accident and failed to take it.
- Pure comparative fault. Damages are reduced by the plaintiff's percentage of fault, however large that percentage is.
- Modified comparative fault. The same reduction, but the plaintiff recovers nothing once the share reaches fifty percent, or fifty one percent, depending on the state.
- Assumption of risk. Express assumption of risk usually still bars the claim. Implied assumption of risk has largely been folded into the comparative fault calculation.
Leading cases
- Butterfield v. Forrester: a rider who was going too fast to avoid an obstruction in the road could not recover, the origin of the total bar.
- Davies v. Mann: the owner of a fettered donkey left in the road still recovered from a driver who could have avoided it, the case usually cited for last clear chance.
- Li v. Yellow Cab Co. of California: California abandoned the total bar and adopted pure comparative fault by judicial decision.
Where students go wrong
The first mistake is failing to say which regime applies. The same facts produce a complete defense in a contributory negligence state and a percentage reduction in a comparative one, so name the rule before you apply it.
The second is forgetting last clear chance in a contributory negligence answer. It is the doctrine that rescues the plaintiff, and leaving it out gives up the strongest counter-argument on the page.
The third is treating assumption of risk as a separate complete defense in every state. Express agreements still bar claims, but implied assumption of risk has mostly merged into comparative fault.
FAQ
What is the difference between pure and modified comparative fault?
Pure comparative fault reduces the award by the plaintiff's share no matter how high it goes. Modified comparative fault cuts recovery off entirely once the plaintiff's share crosses the statutory threshold.
Do these defenses apply to intentional torts?
Generally no. A plaintiff's carelessness is not a defense to a deliberate wrong, though consent and self-defense may be.
How does comparative fault work with several defendants?
The jury assigns percentages to everyone at fault. Whether the plaintiff can collect the whole judgment from one defendant depends on whether the state keeps joint and several liability.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.