Defenses to Negligence

Defenses to Negligence

Assumption of Risk.

Superceding Intervening Cause.

Contributory or Comparative Negligence.

Assumption of Risk

Plaintiff has adequate notice and understanding of the risks associated with an activity.

He knowingly and willingly engages in the act anyway.

Plaintiff, in the eyes of the law, assumes the risk of injuries that fall within the scope of the risk understood.

Case 5.4:   Crews v. Hollenbach (1999).

Superceding Cause

An unforeseeable, intervening act that occurs after Defendant’s act that breaks the causal relationship between Defendant’s act and Plaintiff’s injury relieving Defendant of liability.

If the intervening act was foreseeable, however, Defendant may be liable for Plaintiff’s injuries.

Contributory Negligence

Under common law, if Plaintiff if any way caused his injury, he was barred from recovery.

Most states have replaced contributory negligence with the doctrine of comparative negligence.

The operative concept in comparative negligence is that one cannot recover from another for any injuries one has caused to oneself.

Comparative Negligence

In determining liability, the amount of damages a Plaintiff causes to herself are subtracted from the amount of damages suffered by the Plaintiff and only the remainder is recoverable from the Defendant.

However, if Plaintiff is more than 50% liable, she recovers nothing.