Negligence Defenses: Contributory Negligence and Assumption of Risk
To win a personal injury lawsuit based on negligence, the injured party must prove the elements of negligence. The elements are (1) duty (2) breach (3) causation and (4) damages. Once the elements have been established, the question then shifts to whether the defendant may still avoid liability by asserting a negligence defense. The most common negligence defenses are contributory negligence, comparative negligence, and assumption of risk. This article will discuss all three defenses, when they’re used, and how they’re established.
When an injury occurs, both the defendant and the plaintiff can be at fault. For example, in a car accident between car A and car B, car A’s driver was speeding and car B’s driver was driving drunk. Both drivers are engaged in negligent risk creating behavior. The negligence on the part of the injured plaintiff is called contributory negligence.
A plaintiff “contributes” to his own injury when his behavior falls below what is required by the reasonable person standard, which gauges what the reasonable person would have done to protect himself from injury. In other words, contributory negligence requires everyone to take reasonable steps to avoid danger. Traditionally, contributory negligence was a harsh rule. It completely barred a negligent plaintiff from recovering, no matter how minor the plaintiff’s fault. If a plaintiff had any part to play in his on injury, no matter how minimal, the plaintiff could not recover from the defendant. For example, Timmy leaves the bar from a heavy night of drinking and slams his car into Ronald’s car, which is parked illegally on the side of the road. Ronald is injured and files a lawsuit against Timmy. Under contributory negligence, Ronald would not recover from Timmy for Ronald’s injuries despite Timmy’s drunk driving. Ronald contributed to his own injuries by parking his car illegally and is therefore barred from recovery.
Today, only a few states still use the traditional harsh form of contributory negligence. Most states have abandoned it and adopted a fairer approach known as comparative negligence. Under comparative negligence, recovery is apportioned based on both party’s degree of fault. Comparative negligence allows a negligent plaintiff to recover some damages for their injuries. Comparative negligence prevents the defendant from being completely relieved of responsibility simply because the plaintiff also failed to exercise due care. There are two often-used forms of comparative negligence throughout the United States. Some states use pure comparative negligence. Other states use what is known as partial comparative negligence (also known as modified comparative fault).
Pure comparative negligence allows the plaintiff to recover damages based on the percentage of fault. The judge or jury reviews all the evidence and assigns a percentage of responsibility to each party. For example, if a plaintiff is 40 percent at fault for the accident and the defendant is 60 percent at fault, the plaintiff can still recover 60 percent from the defendant. Under contributory negligence, this plaintiff would have been barred from recovery. Pure comparative negligence applies even if the plaintiff is the primary cause of her own injuries. For example, if a plaintiff is 95 percent at fault and the defendant is only 5 percent at fault, the plaintiff can still recover 5 percent from the defendant.
The second type of comparative negligence is partial comparative negligence. Under partial comparative negligence, a plaintiff’s recovery is reduced by their percentage of fault only if that percentage is below 50 percent. If the plaintiff’s fault is 50 percent or above then he will be completely bared from recovery. Thus, an injured party can only recover if she was not equally responsible (50 percent) or greater. For example, if a plaintiff is 60 percent at fault for the accident and the defendant is 40 percent at fault, the plaintiff would recover nothing under partial comparative negligence. However, if the court found the plaintiff only 40 percent responsible, then that plaintiff could recover 60 percent of his damages from the defendant.
Assumption of Risk
Assumption of risk is the third primary negligence defense. A plaintiff is said to “assume the risk” of injury if he voluntarily enters a dangerous situation fully aware of the risk involved. The principle behind this defense is that a plaintiff who voluntarily consents to an activity cannot later sue if injured. “Voluntary” means the person assuming the risk had a choice to avoid it. If the person had no choice to avoid the dangerous activity then he cannot have assumed the risk.
For example, in a 2007 personal injury lawsuit brought by a student against a community college, a 40-year-old student successfully sued the school for injuries she suffered in a backpacking class. The class was mandatory as part of the college’s physical education requirement. The court held that because she was new to backpacking, she was in the position of following the directions of the gym instructor, her superior, and thus did not assume the risk voluntarily.
Voluntarily assuming the risk can be either expressed or implied. Expressed consent may be written, verbal, or through any other expressed manifestation. Consent can be implied by the plaintiff’s knowledge of the risk and subsequent conduct. To prove the plaintiff impliedly assumed the risk, the defendant must show 1) the plaintiff had actual knowledge of the danger involved 2) the plaintiff understood and appreciated the risks associated with the danger and 3) the plaintiff voluntarily participated in the activity with full knowledge of the danger. Implied consent is most commonly associated with sports. If a person participates in a sporting activity, there is implied consent that the person is subjecting himself to injury foreseeably associated with that sport. For example, a race car driver impliedly assumes the risk of serious injury or death from a crash each time he races.
 74 Am. Jur. 2d Torts § 7.
 Restatement Second, Torts § 464; 57B Am. Jur. 2d Negligence § 824.
 57B Am. Jur. 2d Negligence § 823.
 See 57B Am. Jur. 2d Negligence § 954.
 57B Am. Jur. 2d Negligence § 962.
 Id. See also Lamborn v. Phillips Pac. Chemical Co., 89 Wash. 2d 701, 575 P.2d 215 (1978).
 57B Am. Jur. 2d Negligence § 962.
 57B Am. Jur. 2d Negligence § 965.
 Some states apply a 51 percent rule. The plaintiff is barred from recovery if the plaintiff was more than half (51 percent) responsible for the injuries.
 See Restatement Second, Torts § 496A.
 57B Am. Jur. 2d Negligence § 759.
 57B Am. Jur. 2d Negligence § 779.
 Calouri v. Cty. of Suffolk, 43 A.D.3d 456, 841 N.Y.S.2d 598 (2007).
 Cole v. Raut, 365 S.C. 434, 617 S.E.2d 740 (Ct. App. 2005); See also 57B Am. Jur. 2d Negligence § 759.
 See generally 57B Am. Jur. 2d Negligence § 791 noting that “Professional sporting contests by their nature involve an elevated degree of danger and if a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he or she is injured as a result of those risks.”