Define: Negligence

Quick Summary of Negligence

Failure to exhibit care that one ought to exhibit.

Negligence, as it applies to personal injury law, is conduct which is below the standard of care established by law which protects individuals against the unreasonable risk of harm. To win a personal injury case the plaintiff must prove four elements: (1) The defendant owed the plaintiff a duty of care; (2) The defendant breached that duty; (3) The defendant?s breach of his or her duty of care caused the plaintiff?s injury or loss; (4) The plaintiff suffered injury or loss.

Negligence claims are civil, not criminal cases, which allow the plaintiff (the injured) to sue the defendant for injury. If the plaintiff wins their case they generally receive compensation through an injury award which is used to restore the plaintiff to their original state. Common types of negligence claims include premise liability cases, medical malpractice cases, car accident claims, trucking accidents, product liability claims and contract disputes. Compensation for negligence claims can be won even if the defendant is not charged with a crime or if they face criminal prosecution but are found not guilty.

In Law, a tort is one in which a breach of a duty of care results in damages to the person to whom the duty is owed. Such a duty is owed by manufacturers to the consumers who buy their products, by accountants, doctors, solicitors, care workers, doctors, and other professional persons to their clients, by a company director to its shareholders and other stakeholders, etc.

Negligence occupies a prominent place in modern tort law. This was not always the case: until the early 20th century, while there was a well-developed law of Trespass, a person who had suffered loss or damage indirectly was left to pursue a residual Action on the case, or ‘action in case. There were few unifying features of such actions, so it was difficult to advise the wronged party, whether he had a cause of action or not. Various attempts were made by the courts to make some order out of the morass of cases, but the most celebrated and influential was Lord Atkins’ speech in Donoghue v Stevenson (1932). In this case, he expounded the ‘neighbour principle’: that a man has a ‘duty of care’ to those people whom it is reasonably foreseeable that his actions will affect. If he fails adequately to discharge that duty, then he will be liable for any adverse consequences that flow from his failure.

This judgement did not immediately catch the attention of other judges; it took about a decade before the ‘neighbour principle’ became entrenched in judicial thinking. When it did, the law of negligence largely assumed the form it has today. In brief, to sustain a claim in negligence, the claimant must show that

• he was owed a Duty of care by the defendant, and
• the defendant was in breach of the duty of care, and
• the breach was the cause of the the defendant’s loss or injury (see Causation in negligence).

In response, the defendant might be able to muster one of the general defences to an action in tort or rely on a defence specific to negligence (e.g., contributory negligence).

A person who has suffered loss or injury as a result of a breach of the duty of care can claim damages in tort.

The risk of potentially being sued for negligence makes it paramount for partners in accounting firms that are not limited liability partnerships to obtain professional indemnity insurance.

Conduct that falls below the standards of behaviour established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

Negligence is also the name of a cause of action in the law of torts. To establish negligence, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant’s negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.

The concept of negligence developed under English law. Although English common law had long imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action until the eighteenth century. Another important concept emerged at that time: legal liability for a failure to act. Originally, liability for failing to act was imposed on those who undertook to perform some service and breached a promise to exercise care or skill in performing that service. Gradually, the law began to imply a promise to exercise care or skill in the performance of certain services. This promise to exercise care, whether express or implied, formed the origins of the modern concept of “duty.” For example, innkeepers were said to have a duty to protect the safety and security of their guests.

The concept of negligence passed from Great Britain to the United States as each state (except Louisiana) adopted the common law of Great Britain (Louisiana adopted the civil law of France). Although there have been important developments in negligence law, the basic concepts have remained the same since the eighteenth century. Today negligence is by far the widest-ranging tort, encompassing virtually all unintentional, wrongful conduct that injures others. One of the most important concepts in negligence law is the “reasonable person,” which provides the standard by which a person’s conduct is judged.

The Reasonable Person

A person has acted negligently if she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. The hypothetical reasonable person provides an objective by which the conduct of others is judged. In law, the reasonable person is not an average person or a typical person but a composite of the community’s judgement as to how the typical community member should behave in situations that might pose a threat of harm to the public. Even though the majority of people in the community may behave in a certain way, that does not establish the standard of conduct of a reasonable person. For example, a majority of people in a community may jaywalk, but jaywalking might still fall below the community’s standards of safe conduct.

The concept of the reasonable person distinguishes negligence from intentional torts such as assault and battery. To prove an intentional tort, the plaintiff seeks to establish that the defendant deliberately acted to injure the plaintiff. In a negligence suit, however, the plaintiff seeks to establish that the failure of the defendant to act as a reasonable person would have acted caused the plaintiff’s injury. An intoxicated driver who accidentally injures a pedestrian may not have intended to cause the pedestrian’s injury. But because a reasonable person would not drive while intoxicated because it creates an unreasonable risk of harm to pedestrians and other drivers, an intoxicated driver may be held liable to an injured plaintiff for negligence despite his lack of intent to injure the plaintiff.

The law considers a variety of factors in determining whether a person has acted as a hypothetical reasonable person would have acted in a similar situation. These factors include the knowledge, experience, and perception of the person, the activity the person is engaging in, the physical characteristics of the person, and the circumstances surrounding the person’s actions.

Knowledge, Experience And Perception

The law takes into account a person’s knowledge, experience, and perceptions in determining whether the person has acted as a reasonable person would have acted in the same circumstances. Conduct must be judged in light of a person’s actual knowledge and observations, because a reasonable person always takes this into account. Thus, if a driver sees another car approaching at night without lights, the driver must act reasonably to avoid an accident, even though the driver would not have been negligent in failing to see the other car.

In addition to actual knowledge, the law also considers most people to have the same knowledge, experience, and ability to be perceived as hypothetically reasonable. In the absence of unusual circumstances, a person must see what is clearly visible and hear what is clearly audible. Therefore, a driver of a car hit by a train at an unobstructed railroad crossing cannot claim that she was not negligent because she did not see or hear the train, because a reasonable person would have seen or heard the train.

Also, a person cannot deny personal knowledge of basic facts commonly known in the community. A reasonable person knows that ice is slippery, that live wires are dangerous, that alcohol impairs driving ability, and that children might run into the street when they are playing. To act as a reasonable person, an individual must even take into account her lack of knowledge of some situations, such as when walking down a dark, unfamiliar corridor.

Finally, a person who undertakes a particular activity is ordinarily considered to have knowledge common to others who engage in that activity. A motorist must know the rules of road and a product manufacturer must know the characteristics and dangers of its product, at least to the extent they are generally known in the industry.

Special Skills

If a person engages in an activity requiring special skills, education, training, or experience, such as piloting an aeroplane, the standard by which his conduct is measured is the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorised to engage in that activity. In other words, the hypothetical reasonable person is a skilled, competent, and experienced person who engages in the same activity. Often, persons practicing these special skills must be licenced, such as physicians, lawyers, architects, barbers, pilots, and drivers. Anyone who performs these special skills, whether qualified or not, is held to the standards of conduct of those properly qualified to do so because the public relies on the special expertise of those who engage in such activities. Thus, an unlicenced driver who takes his friends for a joyride is held to the standard of conduct of an experienced, licenced driver.

The law does not make a special allowance for beginners with regard to special skills. The learner, beginner, or trainee in a special skill is held to the standard of conduct of persons who are reasonably skilled and experienced in the activity. Sometimes the beginner is held to a standard he cannot meet. For example, a first-time driver clearly does not possess the experience and skill of an experienced driver. Although it seems unfair to hold the beginner to the standards of the more experienced person, this standard protects the general public from the risk of a beginner’s lack of competence because the community is usually defenceless to guard against such risks.

Physical Characteristics

The law takes a person’s physical characteristics into account in determining whether that person’s conduct is negligent. Whether a person’s conduct is reasonable, and therefore not negligent, is measured against a reasonably prudent person with the same physical characteristics. There are two reasons for taking physical characteristics into account. A physically impaired individual cannot be expected to conform to a standard of conduct that would be physically impossible for her to meet. On the other hand, a physically handicapped person must act reasonably in light of her handicap, and she may be negligent in taking a risk that is unreasonable in light of her known physical limitations. Thus, it would be negligent for a blind person to drive an automobile.

Mental Capacity

Although a person’s physical characteristics are taken into account in determining negligence, the person’s mental capacity is generally ignored and does not excuse the person from acting according to the reasonable person standard. The fact that an individual is lacking in intelligence, judgement, memory, or emotional stability does not excuse the person’s failure to act as a reasonably prudent person would have acted under the same circumstances. For example, a person who causes a forest fire by failing to extinguish his campfire cannot claim that he was not negligent because he lacked the intelligence, judgement, or experience to appreciate the risk of an untended campfire.

Similarly, evidence of voluntary intoxication will not excuse conduct that is otherwise negligent. Although intoxication affects a person’s judgement, voluntary intoxication will not excuse negligent conduct because it is the person’s conduct, not his or her mental condition, that determines negligence. In some cases, a person’s intoxication is relevant to determining whether his conduct is negligent, however, because undertaking certain activities, such as driving, while intoxicated poses a danger to others.

Children

Children may be negligent, but they are not held to the same standard of conduct as adults. A child’s conduct is measured against the conduct expected of a child of similar age, intelligence, and experience. Unlike the standard for adults, the standard of reasonable conduct for children takes into account subjective factors such as intelligence and experience. In this sense, the standard is less strict than for adults because children normally do not engage in the high-risk activities of adults and adults dealing with children are expected to anticipate their “childish” behaviour.

In many states, children are presumed incapable of negligence below a certain age, usually seven years. In some states, children between the ages of seven and fourteen are presumed to be incapable of negligence, although this presumption can be rebutted. Once a person reaches the age of majority, usually eighteen years, she is held to adult standards of conduct.

One major exception to the rules of negligence exists with regard to children. If a child is engaging in what is considered an “adult activity,” such as driving an automobile or flying an aeroplane, she will be held to an adult standard of care. The special skills necessary to engage in these activities and the risk they present to the general public justifies the higher standard of care required.

Emergencies

The law recognises that even a reasonable person can make errors in judgement in emergency situations. Therefore, a person’s conduct in an emergency is evaluated in light of whether it was a reasonable response under the circumstances, even though, in hindsight, another course of action might have avoided the injury.

In some circumstances, failure to anticipate an emergency may constitute negligence. A reasonable person anticipates and takes precautions against foreseeable emergencies. For example, the owner of a theatre must consider the possibility of a fire, and the owner of a swimming pool must consider the possibility of a swimmer drowning. Failure to guard against such emergencies can constitute negligence.

Also, a person can be negligent in causing an emergency, even if he acts reasonably during the emergency. A theatre owner whose negligence causes a fire, for instance, would be liable for the injuries to the patrons, even if he saved lives during the fire.

Conduct of Others

Finally, the reasonable person takes into account the conduct of others and regulates his own conduct accordingly. A reasonable person must even foresee the unlawful or negligent conduct of others if the situation warrants. Thus, a person may be found negligent for leaving a car unlocked with the keys in the ignition because of the foreseeable risk of theft or for failing to slow down in the vicinity of a schoolyard where children might negligently run into the street.

Proof of Negligence

In a negligence suit, the plaintiff has the burden of proving that the defendant did not act as a reasonable person would have acted under the circumstances. The court will instruct the jury as to the standard of conduct required of the defendant. For example, a defendant sued for negligent driving is judged according to how a reasonable person would have driven in the same circumstances. A plaintiff has a variety of means of proving that a defendant did not act as a hypothetical reasonable person would have acted. The plaintiff can show that the defendant violated a statute designed to protect against the type of injury that occurred to the plaintiff. Also, a plaintiff might introduce expert witnesses, evidence of a customary practice, or circumstantial evidence.

Statutes

Federal and state statutes, municipal ordinances, and administrative regulations govern all kinds of conduct and frequently impose standards of conduct to be observed. For example, the law prohibits driving through a red traffic light at an intersection. A plaintiff who suffered harm because a defendant ran a red light can use the defendant’s violation of the law as proof that the defendant was careless. However, a plaintiff’s evidence that the defendant violated a statute does not always establish that the defendant acted unreasonably. The statute that was violated must have been intended to protect against the particular hazard or type of harm that caused injury to the plaintiff.

Sometimes physical circumstances beyond a person’s control can excuse the violation of a statute, such as when the headlights of a vehicle suddenly fail or when a driver swerves into oncoming traffic to avoid a child who darted into the street. To excuse the violation, the defendant must establish that, in failing to comply with the statute, she acted as a reasonable person would have acted.

In many jurisdictions, the violation of a statute, regulation, or ordinance enacted to protect against the harm that resulted to the plaintiff is considered negligence per se. Unless the defendant presents evidence excusing the violation of the statute, the defendant’s negligence is conclusively established. In some jurisdictions, a defendant’s violation of a statute is merely evidence that the defendant acted negligently.

Experts

Often, a plaintiff will need an expert witness to establish that the defendant did not adhere to the conduct expected of a reasonably prudent person in the defendant’s circumstances. For instance, a juror might not be able to determine from his own experience whether a doctor’s prescribed medication was reasonable appropriate for a patient’s illness. Experts may provide the jury with information beyond the common knowledge of jurors, such as scientific theories, data, tests, and experiments. Also, in cases involving professionals such as physicians, experts establish the standard of care expected of the professional. In the above example, the patient might have a physician offer expert testimony regarding the medication that a reasonably prudent physician would have prescribed for the patient’s illness.

Custom

Evidence of the usual and customary conduct or practice of others under similar circumstances can be admitted to establish the proper standard of reasonable conduct. Like the evidence provided by expert witnesses, evidence of custom and habit is usually used in cases where the nature of the alleged negligence is beyond the common knowledge of the jurors. Often, such evidence is presented in cases alleging negligence in some business activity. For example, a plaintiff suing the manufacturer of a punch press that injured her might present evidence that all other manufacturers of punch presses incorporate a certain safety device that would have prevented the injury.

A plaintiff’s evidence of conformity or nonconformity with a customary practice does not establish whether the defendant was negligent; the jury decides whether a reasonably prudent person would have done more or less than is customary.

Circumstantial Evidence

Sometimes a plaintiff has no direct evidence of how the defendant acted and must attempt to prove his case through circumstantial evidence. Of course, circumstantial evidence can support any fact in a lawsuit. Skid marks can establish the speed a car was travelling prior to a collision, a person’s appearance can circumstantially prove his or her age, etc. Sometimes a plaintiff in a negligence lawsuit must prove his entire case with circumstantial evidence. Suppose a plaintiff’s shoulder is severely injured during an operation to remove his tonsils. The plaintiff, who was unconscious during the operation, sues the doctor in charge of the operation for negligence, even though he has no idea how the injury actually occurred. The doctor refuses to say how the injury occurred, so the plaintiff will have to prove his case with circumstantial evidence.

In cases such as this, the doctrine of res ipsa loquitur (“the thing speaks for itself”) is invoked. Res ipsa loquitor allows a plaintiff to prove negligence on the theory that his injury could not have occurred in the absence of the defendant’s negligence. The plaintiff must establish that the injury was caused by an instrumentality or condition that was under the defendant’s exclusive management or control and that the plaintiff’s injury would not have occurred if the defendant had acted with reasonable care. Thus, in the above example, the plaintiff can use res ipsa loquitor to prove that the doctor negligently injured his shoulder.

Duty

A defendant is not liable for negligence, even if she did not act with reasonable care or if she did not owe a duty to the plaintiff. In general, a person is under a duty to all persons at all times to exercise reasonable care for their physical safety and the safety of their property. This general standard of duty may lead to seemingly unjust results. For example, if a property owner leaves a deep hole in her backyard with no warnings or barriers around the hole, she should be liable if her guest falls into the hole. But what if a trespasser enters the backyard at night and falls into the hole? Although the property owner was negligent in failing to guard against someone falling into the hole, it would be unfair to require the property owner to compensate the trespasser for his injury. Therefore, the law states that a property owner does not have a duty to protect a trespasser from harm.

The law uses the concept of duty to limit the situations where a defendant is liable for a plaintiff’s injury. The court, not the jury, decides whether a defendant has a duty to shield the plaintiff from harm. Over time, courts have established a variety of rules defining and restricting a person’s duty to others, and occasionally statutes have established or restricted duties. Whether the defendant owes the plaintiff a duty depends upon the relationship between the defendant and the plaintiff.

A preexisting relationship can create an affirmative duty to exercise reasonable care to protect another person from harm. For example, an inn has an affirmative duty to protect its guests, a school has a duty to its pupils, a store has a duty to its customers, and a lifeguard has a duty to swimmers.

One always has a duty to refrain from taking actions that endanger the safety of others, but usually one does not have a duty to render aid or prevent harm to a person from an independent cause. A common example of this limitation on duty is the lack of a duty to go to the aid of a person in peril. An expert swimmer with a boat and a rope has no duty to attempt to rescue a person who is drowning (although a hired lifeguard would). A physician who witnesses an automobile accident has no duty to offer emergency medical assistance to the accident victims.

Sometimes a person can voluntarily assume a duty where it would not otherwise exist. If the doctor who encounters an automobile accident decides to render aid to the victims, she is under a duty to exercise reasonable care in rendering that aid. As a result, doctors who have stopped along the highway to render medical assistance to accident victims have been sued for negligence. Many states have adopted “good Samaritan” statutes to relieve individuals who render emergency assistance from negligence liability.

Even if a plaintiff establishes that the defendant had a duty to protect the plaintiff from harm and breached that duty by failing to use reasonable care, the plaintiff must still prove that the defendant’s negligence was the proximate cause of her injury.

Proximate Cause

Perhaps no issue in negligence law has caused more confusion than the issue of proximate cause. The concept of proximate cause limits a defendant’s liability for his negligence to consequences reasonably related to the negligent conduct. Although it might seem obvious whether a defendant’s negligence has caused injury to the plaintiff, issues of causation are often very difficult. Suppose, for example, that a defendant negligently causes an automobile accident, injuring another driver. The colliding cars also knock down a utility pole, resulting in a power outage. Clearly, the defendant’s negligence has, in fact, caused both the accident and power outage. Most people would agree that the negligent defendant should be liable for the other driver’s injuries, but should he also be liable to an employee who, due to the failure of her electric alarm clock, arrives late for work and is fired? This question raises the issue of proximate cause.

Actually, the term proximate cause is somewhat misleading because, as a legal concept, it has little to do with proximity (in time or space) or causation. Rather, proximate cause is related to fairness and justice in the sense that, at some point, it becomes unfair to hold a defendant responsible for the results of his negligence. For example, Mrs O’Leary’s negligent placement of her lantern may have started the Great Chicago Fire, but it would be unjust to hold her responsible for all the damage done by the fire.

In determining whether a defendant’s negligence is the proximate cause of a plaintiff’s injury, most courts focus on the foreseeability of the harm that resulted from the defendant’s negligence. For example, if a driver negligently drives his automobile, it is foreseeable that he might cause an accident with another vehicle, hit a pedestrian, or crash into a storefront. Thus, the driver would be liable for those damages. But suppose the negligent driver collides with a truck carrying dynamite, causing an explosion that injures a person two blocks away. Assuming that the driver had no idea that the truck was carrying dynamite, it is not foreseeable that his negligent driving could injure a person two blocks away. Therefore, the driver would not be liable for that person’s injury under this approach. When applying this approach, courts frequently instruct juries to consider whether the harm or injury was the “natural or probable” consequence of the defendant’s negligence.

A minority of courts hold the view that the defendant’s negligence is the proximate cause of the plaintiff’s injury if the injury is the “direct result” of the negligence. Usually, a plaintiff’s injury is considered to be the direct result of the defendant’s negligence if it follows an unbroken, natural sequence from the defendant’s act and no intervening external force acts to cause the injury.

Intervening Cause

Sometimes a plaintiff’s injury results from more than one cause. For instance, suppose a defendant negligently injures a pedestrian in an automobile accident. An emergency room doctor negligently treats the plaintiff, aggravating her injury. The doctor’s negligence is an “intervening cause” of the plaintiff’s injury. A cause of injury is an intervening cause only if it occurs subsequent to the defendant’s negligent conduct.

Just because an intervening cause exists, however, does not mean that the defendant’s negligent conduct is not the proximate cause of the plaintiff’s injury. The defendant remains liable if he should have foreseen the intervening cause and taken it into account in his conduct. If a defendant negligently spills a large quantity of gasoline and doesn’t clean it up, he will not be relieved of liability for a resulting fire merely because another person causes the gasoline to ignite, because it is foreseeable that the gasoline might be accidentally ignited. Also, it is foreseeable that a sudden gust of wind might cause the fire to spread quickly.

Even if an intervening cause is foreseeable, however, in some situations, the defendant will still be excused from liability. If the intervening cause is the intentional or criminal conduct of a third person, the defendant is not liable for this person’s negligent conduct. In the example where the defendant spilled gasoline and did not clean it up, he is not responsible for the resulting fire if someone intentionally ignites the gas. Additionally, on occasion a third party who has a duty to act will become aware of the danger that the defendant created through his negligence. If the third person fails to act, the defendant is not liable. In the gasoline example, suppose the defendant, a customer at a gas station, negligently spills a large quantity of gas near the pumps. The owner of the gas station sees the spilled gasoline but does nothing. The owner of the gas station, not the defendant, would be liable if another customer accidentally ignites the gasoline.

Sometimes, however, a completely unforeseeable event or result occurs after a defendant’s negligence, resulting in harm to the plaintiff. An abnormal, unpredictable, or highly improbable event that occurs after the defendant’s negligence is known as a “superseding cause” and relieves the defendant of liability. For example, suppose a defendant negligently blocks a road, causing the plaintiff to make a detour in her automobile. While on the detour, an aeroplane hits the plaintiff’s car, killing the plaintiff. The aeroplane was completely unforeseeable to the defendant, and thus he cannot be held liable for the plaintiff’s death. The aeroplane was a superseding cause of the plaintiff’s death.

Even great jurists have had difficulty articulating exactly what constitutes proximate cause. Although the law stipulates criteria like “foreseeability” and “natural, direct consequences,” ultimately, people’s sense of right and wrong determines the question of proximate cause. In the example where the defendant spills gasoline and does not clean it up, most people would agree that the defendant should be liable if a careless smoker accidentally ignites the gasoline, even if they could not articulate that the smoker was a foreseeable, intervening cause of the fire.

Defences To Negligence Liability

Even if a plaintiff has established that the defendant owed a duty to the plaintiff, breached that duty, and proximately caused the defendant’s injury, the defendant can still raise defences that reduce or eliminate his liability. These defences include contributory negligence, comparative negligence, and assumption of risk.

Contributory Negligence

Frequently, more than one person has acted negligently to create an injury. Under the common-law rule of contributory negligence, a plaintiff whose own negligence was a contributing cause of her injury was barred from recovering from a negligent defendant. For example, a driver negligently enters an intersection in the path of an oncoming car, resulting in a collision. The other driver was driving at an excessive speed and might have avoided the collision if she had been driving more slowly. Thus, both drivers’ negligence contributed to the accident. Under the doctrine of contributory negligence, neither driver would be able to recover from the other due to her own negligence in causing the accident.

The doctrine of contributory negligence seeks to keep a plaintiff from recovering from the defendant where the plaintiff is also at fault. However, this doctrine often leads to unfair results. For example, even if a defendant’s negligence is the overwhelming cause of the plaintiff’s injury, even slight negligence on the part of the plaintiff completely bars his recovery. Also, the negligence of many defendants, such as corporations, manufacturers, and landowners, creates no corresponding risk of injury to themselves. In such cases, the doctrine of contributory negligence, which can completely eliminate liability for their negligence, reduces their incentive to act safely. As a result, courts and statutes have considerably weakened the doctrine of contributory negligence.

Comparative Negligence

Most states, either by court decision or statute, have now adopted some form of comparative negligence in place of pure contributory negligence. Under comparative negligence, or comparative fault, as it is sometimes known, a plaintiff’s negligence is not a complete bar to her recovery. Instead, the plaintiff’s damages are reduced by whatever percentage her own fault contributed to the injury. This requires the jury to determine, by percentage, the fault of the plaintiff and defendant in causing the plaintiff’s injury. For example, suppose a plaintiff is injured in an automobile accident and sustains $100,000 in damages. The jury determines that the plaintiff was 25 per cent responsible for the accident and that the defendant was 75 per cent responsible. The plaintiff will then be allowed to recover 75 per cent of her damages, or $75,000.

Most states have adopted the “50 per cent rule” of comparative negligence. Under this rule, the plaintiff cannot recover any damages if her negligence was as great as, or greater than, the negligence of the defendant. This rule partially retains the doctrine of contributory negligence, reflecting the view that a plaintiff who is largely responsible for her own injury is unworthy of compensation. A minority of states have adopted “pure comparative fault.” Under that rule, even a plaintiff who is 80 per cent at fault in causing her injury may still recover 20 per cent of damages, reflecting the defendant’s percentage of fault.

Assumption of Risk

Under the assumption of risk defence, a defendant can avoid liability for his negligence by establishing that the plaintiff voluntarily consented to encountering a known danger created by the defendant’s negligence. assumption of risk may be express or implied. Under the express assumption of risk, persons agree in advance that one person consents to assume the risk of the other’s negligence. For example, a skier who purchases a lift ticket at a ski resort usually expressly agrees to assume the risk of any injury that might occur while skiing. Thus, even if the ski resort negligently fails to mark a hazard on a trail resulting in an injury to a skier, the ski resort may invoke the assumption of risk defence in the skier’s subsequent lawsuit.

Assumption of risk may also be implied from a plaintiff’s conduct. For example, the defendant gives the plaintiff, a painter, a scaffold with a badly frayed rope. The plaintiff, fully aware of the rope’s condition, proceeds to use the scaffold and is injured. The defendant can raise the implied assumption of risk defence. This defence is similar to the contributory negligence defence; in the above example, the defendant might also argue that the plaintiff was contributorily negligent for using the scaffold when he knew the rope was frayed.

The courts have had a lot of trouble with the implied assumption of risk defence because it is so similar to contributory negligence. Since comparative fault has become more popular, the defence has become less important and can only be used in a few places today.

Disclaimer

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 9th April, 2024.