Also known as: defence to negligence · defences to negligence · defense to negligence · negligence defenses · negligence defence · affirmative defenses · contributory negligence · assumption of risk
Written by attorneys — see sources below.
Legal doctrines that bar or reduce a plaintiff's recovery in a negligence action when the plaintiff's own conduct contributed to the harm or when the plaintiff knowingly accepted the risk of injury.
Dorothy Daniels left a gate open on her property allowing a fire to spread toward Dillon Energy's equipment. A Dillon technician entered the land without consent to extinguish the blaze and damaged fencing in the process. Because Dorothy's failure to secure the gate constituted contributory negligence that created the threat, she cannot recover for the fencing damage.
Darius Dixon purchased stock after Dominion Capital falsely represented its financial health. Darius ignored obvious red flags in the documents yet relied on the statements. Because his reliance was justifiable, his own failure to investigate does not bar recovery for the resulting loss.
Denise Donovan signed a hotel waiver before a yoga class and then positioned herself near an unrailed drop-off despite visible crowding. When another participant bumped her, she fell and was injured. Her decision to remain in the known hazardous area supports a complete bar to recovery under assumption of risk.
Demetrius Douglas bypassed a lockout procedure and became pinned inside a turbine. The monitor saw repeated alerts but delayed shutdown to avoid output loss, allowing blades to strike Douglas. The monitor's failure to act on the existing opportunity permits recovery despite Douglas's initial negligence.
Diane Dawson was injured in State A while working for a company headquartered in State B. State A applies contributory negligence as a complete bar while State B uses comparative fault. The forum must determine which state's law governs the defense analysis under interest-weighing principles.
Harry Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation or maintenance of the train. He also claimed that he was rightfully on the premises as a licensee because he was on a commonly used beaten footpath which ran for a short distance alongside the tracks. To enforce that claim he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. The Erie Railroad Company denied liability, and the case was tried by a jury. The railroad insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended that under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way are to be deemed trespassers. The railroad further contended that it is not liable for injuries to undiscovered trespassers resulting from its negligence unless the conduct is wanton or wilful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts. He contended that since there was no statute of the State on the subject, the railroad's duty and liability is to be determined in federal courts as a matter of general law. The trial judge refused to rule that Pennsylvania law precluded recovery. The jury brought in a verdict of $30,000, and the judgment entered thereon was affirmed by the Circuit Court of Appeals. The Erie had contended that application of the Pennsylvania rule was required by section 34 of the Federal Judiciary Act of September 24, 1789. Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, the Supreme Court granted certiorari.
View caseDaphne Doyle stood at the edge of a flooded roadway to film a report despite warnings. A passing car skidded and struck her. Her positioning is evaluated as potential contributory negligence that may bar or reduce recovery depending on whether it cooperated with the driver's negligence.
Contributory negligence bars recovery when the plaintiff's conduct falls below the standard for self-protection and cooperates with the defendant's negligence to cause the harm, unless the defendant had the last clear chance to avoid the injury.
Assumption of risk requires that the plaintiff fully understood the specific risk, voluntarily chose to encounter it, and manifested willingness to accept the harm that materialized.
Last clear chance permits recovery when the plaintiff was unable to avoid harm and the defendant negligently failed to use a then-existing opportunity to prevent the injury.
…in the first place, that the charge was correct because of the fact that Rule 8 (c) of the Rules of Civil Procedure makes contributory negligence an affirmative defense. We do not agree. Rule 8 (c) covers only the manner of pleading. The question of the burden of establishing contributory negligence is a question of local law which…