Torts Neg- Defernse

• Defenses


  • Contributory negligence
  • Comparative negligence
  • Assumption of risk
• Contributory negligence


  No one recovers if both parties are at fault
• Contributory negligence


  1. Unreasonable conduct from the plaintiff contributes to the plaintiff's harm

  2. Becomes relevant only after plaintiff present prima facie case of negligence

  3. Courts only allow if defendant's conduct was negligent; more culpability from defendant means plaintiff's unreasonable conduct did not matter

  4. Last clear chance: plaintiff can still recover fully upon proof that the defendant was more culpable because defendant had lost opportunity to prevent harm
• Comparative negligence


  When both parties have responsibility, both should share responsibility
• Types of comparative negligence

  • Pure comparative fault: negligent recovers some damages
  • Modified comparative fault: plaintiff's recover is barred if it/fault exceeds certain percentage
• Assigning fault in comparative negligence

  1. Whether conduct resulted from inadvertence/involved awareness of the danger

  2. How great the risk was created by the conduct

  3. Significance of what was sought by the conduct

  4. Capacities of the action, superior/inferior

  5. Any extenuating circumstances
• Types of assumption of risk


  • Express assumption
  • Implied assumption of risk
  • Primary assumption of risk
• Express assumption of risk

  Done with a written document
• Trunkl factors to assess validity of written document

  • Concerns a business type generally thought suitable for public regulation
  • Party is engaged in a service of great importance to public
  • Party holds themselves out as willing to perform this service for any member of the public who seeks it/within established standards
  • Party has a decisive advantage for bargaining strength relative to those seeking service
  • In exercising superior bargaining power, the party confronts the public with a standardized adhesion contract and not provision where person may pay more fees for protection against negligence
  • Person or property of the purchaser is placed under the control of seller, subject to the risks of carelessness by seller/agents
• Implied assumption of risk

  • Knowledge of risk
  • Appreciation of the risk
  • Voluntary exposure to the risk
• Primary assumption of risk


  • Participation in an active sport generally does not have a duty to the other participants
  • Breach of duty if: (1) the participant intentionally injures another player OR (2) engages in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport