Defenses to Negligence

Question 1

Contributory Negligence

Answer 1

Under the minority doctrine of contributory negligence, if the
plaintiff’s failure to exercise reasonable care for his own safety is a contributing factor to
his own injury, he is barred from recovery for the defendant’s negligent action.

Question 2

Comparative Negligence

Answer 2

Modernly, the doctrine of comparative negligence has
replaced contributory negligence, so that liability is apportioned according to the relative
degrees of fault of the plaintiff and defendant. In a pure comparative negligence
jurisdiction like California, the plaintiff will recover some damages no matter how great
his own negligence was. In partial comparative negligence jurisdictions, the plaintiff will
not recover if his own negligence equals or exceeds the defendant’s.

Question 3

Last Clear Chance Doctrine

Answer 3

The last clear chance doctrine limits the contributory
negligence defense so that even if the plaintiff was contributorily negligent, he will be
permitted to recover if the defendant had a superior opportunity to avoid the accident
and failed to do so. For example, if the plaintiff, through his own negligence, is in a
position of helpless or inattentive peril and therefore unable to avoid an impending
accident, and the defendant could have avoided the accident through the exercise of
due care, but failed to do so, then the plaintiff’s contributory negligence will not bar his
recovery from the defendant.

Question 4

Assumption of the Risk

Answer 4

f he voluntarily subjects himself to a known and appreciated
risk. Such consent may be expressly created by agreement between the parties, or it
may be implied by the plaintiff’s conduct. At common law, assumption of the risk is a
complete bar to recovery in a negligence action.