CASUALTY TERMS & CONCEPTS · 5 MIN READ

Negligence Defenses and Comparative Fault

The plaintiff's own conduct is the first line of defense. At common law, contributory negligence — any fault by the plaintiff — completely barred recovery, a rule that survives only in a minority of holdout jurisdictions. Its harshness spawned the last-clear-chance doctrine, which rescued a contributorily negligent plaintiff in helpless peril when the defendant knew of the peril and had the time and means to avoid the harm but failed to do so. Most states have since moved to comparative negligence: pure comparative fault reduces recovery by the plaintiff's percentage no matter how large, while modified systems cut off recovery entirely once the plaintiff's share crosses a bar — in the common 51 percent version, a plaintiff whose fault exceeds fifty percent recovers nothing. Last clear chance has been largely absorbed into comparative allocation but remains live where contributory negligence persists. Assumption of risk splits into two branches. Express assumption of risk is a contractual waiver — a signed release of liability — enforceable unless it violates public policy, as when a party owing a public duty tries to exculpate itself. Implied assumption of risk arises from conduct: primary implied assumption means the defendant never owed a duty as to inherent risks of an activity, while secondary implied assumption — voluntarily encountering a known risk created by the defendant's negligence — is now generally folded into comparative-fault percentages rather than operating as an absolute bar. Plaintiff conduct after the tort matters too. The avoidable-consequences (mitigation) doctrine denies recovery for damages the plaintiff could have prevented with reasonable post-injury effort — such as unreasonably refusing recommended medical treatment — while leaving the defendant fully liable for the unavoidable harm; the standard is reasonableness, never extraordinary or risky measures. The modern seat-belt rule works similarly: failure to use an available restraint is comparative fault, but it reduces recovery only by the increment of harm the non-use caused, proven by expert testimony, not by the whole award.