Negligence - Contributory fault

Learning Outcomes

This article examines contributory fault defenses in negligence actions, including:

• Explaining the traditional common law defense of contributory negligence and its modern status in a small minority of jurisdictions.
• Distinguishing pure comparative negligence from the major modified comparative negligence variants (50% and 49% bars) and showing how to calculate recoverable damages.
• Describing the Last Clear Chance doctrine and identifying when it allows a contributorily negligent plaintiff to recover.
• Analyzing express and implied assumption of risk, including required elements, typical waiver limitations, and their treatment in comparative fault jurisdictions.
• Showing how comparative fault principles interact with assumption of risk, intentional and reckless conduct, strict liability, and multi-defendant scenarios.
• Introducing imputed contributory negligence and recognizing when one person’s negligence is attributed to another based on vicarious liability relationships.
• Differentiating contributory/comparative negligence from the separate doctrine of avoidable consequences (post-accident mitigation of damages).
• Identifying situations in which plaintiff-fault defenses do not apply, such as intentional torts and claims protected by specific safety statutes.
• Applying these doctrines to common MBE-style fact patterns involving automobile collisions, recreational activities, statutory violations, and joint-and-several liability issues.

MBE Syllabus

For the MBE, you are required to understand how a plaintiff’s own conduct affects recovery in negligence actions, with a focus on the following syllabus points:

• Definition and application of traditional contributory negligence as a complete bar.
• Operation and limits of the Last Clear Chance doctrine in contributory negligence jurisdictions.
• Distinctions among pure comparative negligence and modified comparative negligence systems (including multi-defendant scenarios).
• Methods for calculating a plaintiff’s recovery under different comparative fault rules.
• Elements and effect of assumption of risk (express and implied), including validity of waivers.
• Interaction between comparative fault and assumption of risk, and the status of implied assumption of risk in comparative fault jurisdictions.
• Situations in which contributory or comparative negligence is not a defense (e.g., intentional torts, certain statutes).
• Basic principles of imputed contributory negligence and its disfavored status.
• Distinction between contributory/comparative negligence and the separate doctrine of avoidable consequences (mitigation of damages).
• The relationship between comparative fault and joint-and-several liability in multi-defendant negligence actions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a jurisdiction following traditional common law contributory negligence, if a plaintiff is found to be even 1% negligent in causing their own injuries, their recovery will be:
   1. Reduced by 1%.
   2. Reduced proportionately based on fault.
   3. Completely barred.
   4. Unaffected, as 1% is de minimis.
2. The Last Clear Chance doctrine allows a plaintiff to recover despite their own contributory negligence if:
   1. The defendant acted with malice.
   2. The plaintiff's negligence was very slight compared to the defendant's.
   3. The defendant had the final opportunity to avoid the accident but failed to do so.
   4. The plaintiff assumed the risk.
3. In a pure comparative negligence jurisdiction, a plaintiff found to be 60% at fault for their own injuries totaling 100,000canrecover:a)100,000 can recover: a) 100,000canrecover:a)0
   1. 40,000c)40,000
   2. $60,000
4. Express assumption of risk typically involves:
   1. Plaintiff implicitly understanding a known danger.
   2. Plaintiff signing a waiver or release.
   3. Plaintiff failing to exercise reasonable care for their own safety.
   4. Defendant having the last clear chance to avoid harm.

Introduction

Once a plaintiff has established a prima facie case for negligence (duty, breach, causation, damages), the defendant may raise affirmative defenses based on the plaintiff's conduct. These defenses—primarily contributory negligence, comparative negligence (often grouped under the broader label “comparative fault”), and assumption of risk—can substantially reduce or completely bar the plaintiff's recovery.

Key Term: Affirmative Defense
A defense asserted by the defendant which, if proven, defeats or reduces the plaintiff’s claim even if the plaintiff proves all elements of the prima facie case. The defendant bears the burden of pleading and proving an affirmative defense.

Key Term: Contributory Fault
An umbrella term for doctrines that reduce or bar a plaintiff’s recovery because of the plaintiff’s own blameworthy conduct, including contributory negligence, comparative negligence, and assumption of risk.

On the MBE, questions will almost always tell you which fault system applies (contributory negligence, pure comparative negligence, or modified comparative negligence). If the question is silent and simply refers to “comparative negligence,” assume a pure comparative negligence regime unless the facts clearly indicate otherwise.

These doctrines are frequently tested in fact patterns involving:

• Automobile collisions where both drivers were careless.
• Recreational activities (e.g., skiing, sports) with written waivers.
• Statutory violations by both plaintiff and defendant (negligence per se).
• Multi-defendant situations requiring apportionment of fault.
• Situations where the defendant’s violation of a protective statute interacts with plaintiff fault (e.g., speeding in a school zone, child-protective statutes).

A clear understanding of when the plaintiff’s own conduct is a total bar, when it merely reduces damages, and when it is not a defense at all is important for accurate MBE analysis. A common exam trap is to apply contributory or comparative negligence to intentional torts or to situations where a statute is designed to protect the plaintiff from their own poor judgment—both of which are generally incorrect.

Contributory Negligence

At common law, contributory negligence was a complete bar to recovery. If the plaintiff's own negligence contributed in any way, however slight, to their injury, the plaintiff could recover nothing from a negligent defendant.

Key Term: Contributory Negligence
A doctrine under which any negligence by the plaintiff that contributes to their own injury completely bars recovery from a negligent defendant.

This harsh rule often led to results where a slightly negligent plaintiff received no compensation from a greatly negligent defendant. Because of this severity, pure contributory negligence now exists in only a small minority of states, but it remains testable on the MBE.

Standard of Care for Contributory Negligence

The standard applied to the plaintiff is the same as that for the defendant in an ordinary negligence claim:

• The plaintiff must exercise the care that a reasonably prudent person would exercise under similar circumstances.
• A plaintiff can be contributorily negligent by:
  • Engaging in risky behavior (e.g., riding with a visibly drunk driver).
  • Failing to follow safety instructions or warnings.
  • Violating a safety statute or regulation (negligence per se by the plaintiff).
  • Failing to look out for their own safety (e.g., texting while crossing a busy street).

The ordinary rules about tailoring the standard of care to the actor apply to plaintiffs as well as defendants:

• Children are judged by a child-appropriate standard (a reasonably careful child of like age, intelligence, and experience), except when engaged in adult activities (e.g., driving a car), in which case the adult standard applies.
• Plaintiffs with physical disabilities are compared to a reasonably prudent person with that disability.
• Mental deficiency generally does not lower the standard of care.

Special applications:

• Rescuers: A plaintiff acting to rescue someone in danger is allowed to take considerable risks. Conduct that might otherwise be negligent may not constitute contributory negligence when undertaken in a genuine rescue attempt. The emergency is taken into account in judging reasonableness.
• Remaining in danger: Failing to remove oneself from a known danger (e.g., continuing to ride with a drunk driver after realizing the driver is impaired) can itself be contributory negligence.
• Professional plaintiffs: When the plaintiff is a professional with special training (e.g., a firefighter, a race car driver), courts may expect awareness of risks typical for that activity. This overlaps with assumption of risk and may reduce or bar recovery in some scenarios.

Plaintiff’s Violation of a Statute

A plaintiff’s own violation of a statute can establish contributory negligence (or comparative fault in modern systems) if:

• The statute sets a standard of care for protection of others.
• The plaintiff is within the protected class.
• The harm is the type the statute was designed to prevent.
• The statutory violation is a cause of the plaintiff’s injury.

In such cases, the plaintiff’s statutory violation is treated in the same way as a defendant’s violation would be, but it is used to reduce or bar the plaintiff’s recovery rather than to create a duty.

The same limitations that apply to using a statute against a defendant apply when it is used against a plaintiff:

• If the violation is excused (e.g., incapacity, emergency, impossibility of compliance), it should not be treated as contributory negligence.
• The harm must be within the risk of the statute—the accident must be of the type the statute intends to prevent.

There is one important limitation: if the defendant’s negligence arises from violating a safety statute designed specifically to protect a particular class from their own inability or lack of judgment (e.g., child-protective statutes, some workplace safety rules), the plaintiff’s contributory negligence typically is not a defense.

Example pattern:

• A statute limits speed in a school zone to protect children walking to school.
• The defendant exceeds the speed limit and hits a child who carelessly ran into the road.
• Any contributory negligence by the child (failing to look) does not absolve the speeding driver, because the statute’s purpose is precisely to protect children from that kind of impulsive conduct.

On the exam, when you see a statute clearly aimed at protecting vulnerable plaintiffs “from themselves,” be cautious about allowing contributory or comparative negligence to defeat the claim.

Contributory Negligence vs. Avoidable Consequences

It is important not to confuse contributory negligence with the separate doctrine of avoidable consequences (mitigation of damages).

Key Term: Avoidable Consequences
A doctrine requiring a plaintiff, after being injured, to take reasonable steps to limit additional harm; failure to mitigate reduces recoverable damages but does not affect liability for the original injury.

• Contributory negligence focuses on the plaintiff’s unreasonable conduct before the accident (or at the moment of the accident) that contributes to causing the injury.
• Avoidable consequences focuses on the plaintiff’s conduct after the accident (e.g., refusing reasonable medical treatment, failing to follow medical advice) and only limits additional damages caused by that post-accident conduct.

On the MBE, if the plaintiff’s careless conduct occurs after the defendant’s negligence has already caused harm, treat it as avoidable consequences, not contributory negligence.

Contributory Negligence and Intentional or Reckless Conduct

Contributory negligence is not a defense to:

• Intentional torts (e.g., battery, assault, false imprisonment).
• Most forms of willful, wanton, or reckless misconduct.

The defendant cannot avoid liability for an intentional battery by arguing that the plaintiff “should have been more careful” or “provoked” the incident by being careless.

For reckless or wanton conduct, contributory negligence is generally not a complete bar under the traditional rule either; courts typically refuse to allow ordinary negligence by the plaintiff to excuse egregious misconduct by the defendant.

Worked Example 1.1

Driver A negligently speeds through an intersection. Pedestrian B, also negligent by jaywalking while texting, steps into the intersection and is struck by Driver A. Driver A saw Pedestrian B in time to stop but failed to do so. The jurisdiction follows traditional contributory negligence with the Last Clear Chance doctrine. Can Pedestrian B recover?

Answer:
Yes, Pedestrian B was contributorily negligent (jaywalking while inattentive), which would ordinarily bar recovery under contributory negligence. However, Driver A had a clear opportunity to avoid the accident after seeing B in the road but failed to exercise reasonable care. Because the jurisdiction recognizes Last Clear Chance, B may recover despite her contributory negligence since A had the final clear opportunity to prevent the harm and did not take it.

Last Clear Chance Doctrine

To mitigate the harshness of contributory negligence, courts developed the Last Clear Chance doctrine. This doctrine permits a contributorily negligent plaintiff to recover if the defendant had the final opportunity to avoid the accident but failed to do so.

Key Term: Last Clear Chance
In contributory negligence jurisdictions, a doctrine allowing a negligent plaintiff to recover if the defendant, after the plaintiff was in danger, had the last clear opportunity to avoid the harm by exercising reasonable care but failed to do so.

Two classic variations appear in the case law:

• Helpless Danger (Helpless Risk):
  The plaintiff, through their own negligence, is in a position of danger from which they cannot escape (e.g., unconscious on railroad tracks, car stalled on tracks with no time or ability to get out).

Key Term: Helpless Danger
A situation where the plaintiff, often through their own negligence, is in actual danger and cannot escape by exercising reasonable care.

• The defendant is liable if they knew or should have known of the plaintiff's danger and still failed to act reasonably to avoid harm in time in many jurisdictions; some require actual knowledge.

• Inattentive Danger (Inattentive Risk):
  The plaintiff, through their own negligence, is in danger but could escape if paying attention (e.g., daydreaming on railroad tracks but physically able to move away).

Key Term: Inattentive Danger
A situation where the plaintiff is in actual danger but could escape by paying attention and exercising reasonable care.

• The defendant is liable only if they actually knew of the plaintiff’s danger and still failed to act reasonably to avoid the accident.

Key points and limitations:

• The defendant must have had a clear and practicable opportunity to avoid the accident after the plaintiff was already in danger.
• If the defendant’s only negligence occurred earlier (e.g., failing to maintain brakes days before the accident), but there was no later chance to avoid the harm once the plaintiff was in danger, Last Clear Chance does not apply.
• In some jurisdictions, Last Clear Chance is described as the plaintiff’s “rebuttal” to the defense of contributory negligence: even if the defense is established, the plaintiff can still win by proving Last Clear Chance.

In most comparative negligence jurisdictions, Last Clear Chance has been abolished or has little practical effect because the comparative system already softens the harshness of contributory negligence by apportioning fault instead of barring recovery entirely. On the MBE, if the question states you are in a comparative negligence jurisdiction, assume Last Clear Chance does not apply unless the question explicitly says otherwise.

Imputed Contributory Negligence

Key Term: Imputed Contributory Negligence
A doctrine under which one person’s negligence is attributed to another plaintiff because of a special relationship such that the plaintiff would be vicariously liable for that person’s negligence in a suit by a third party.

Historically, some courts imputed the negligence of one person (e.g., a driver) to another (e.g., a passenger-owner) so as to bar the latter’s claim. Modern law generally limits this doctrine and disfavors broad imputation.

Imputed contributory negligence typically applies only where:

• The plaintiff and the negligent person stand in a relationship that would make the plaintiff vicariously liable for that person’s negligence in a suit by a third party, such as:
  • Employer and employee (for acts within the scope of employment).
  • Business partners or joint venturers.
• It does not apply to:
  • A child plaintiff based on a parent’s negligence (in a suit against a third party).
  • A spouse based on the other spouse’s negligence (in a suit against a third party).
  • A parent based on a child’s negligence, or vice versa, in actions against third parties.
  • A mere passenger based on a driver’s negligence, unless the passenger has a legal right of control making them vicariously liable.

Even where negligence is not imputed, remember that some claims (e.g., loss of consortium or a parent’s claim for a child’s medical expenses) are derivative; they fail if the primary claim fails, not because negligence is imputed but because the primary cause of action is barred.

Worked Example 1.2

Owner hires Employee to deliver goods. Employee negligently collides with Driver, who is also negligent. Owner sues Driver for damage to the delivery van. Driver asserts that Employee’s negligence should be treated as Owner’s negligence and bar Owner’s recovery in a contributory negligence jurisdiction. Is this argument valid?

Answer:
Yes. Employee was acting within the scope of employment, and Owner would be vicariously liable for Employee’s negligence in a suit by a third party. Because the relationship supports vicarious liability, Employee’s contributory negligence can be imputed to Owner. In a pure contributory negligence jurisdiction, that imputed negligence can bar Owner’s recovery against Driver.

Additional Contributory Negligence Exam Traps

On MBE questions involving contributory negligence:

• Confirm that the jurisdiction actually uses contributory negligence (the fact pattern must say so).
• Look for any facts supporting Last Clear Chance—often a defendant seeing the plaintiff in danger with time to avoid harm.
• Watch for protective statutes where plaintiff negligence is not a defense (e.g., statutes designed to protect children, workers).
• Do not apply contributory negligence to intentional torts or to strict products liability; those areas have their own defenses.

Comparative Negligence

Most jurisdictions have replaced the all-or-nothing contributory negligence rule with a comparative negligence (or comparative fault) system. Under comparative negligence, the plaintiff's negligence reduces their recovery rather than barring it completely, unless the plaintiff’s fault crosses a specified threshold in some systems.

Key Term: Comparative Negligence
A system in which the trier of fact assigns percentages of fault to the plaintiff and defendant, and the plaintiff’s damages are reduced in proportion to the plaintiff’s share of fault.

Key Term: Comparative Fault
A broader term often used to include all systems that apportion responsibility among all negligent parties, including plaintiffs and multiple defendants; often applied in negligence and strict liability cases.

On the MBE, unless the question states otherwise, assume pure comparative negligence applies.

Basic Operation of Comparative Negligence

In any comparative negligence system, the analysis has two main steps:

• Determine the plaintiff’s total damages (as if no fault by plaintiff).
• Assign fault percentages to each party whose negligence contributed to the harm, then reduce the plaintiff’s damages by the plaintiff’s share of responsibility (and, in modified systems, check whether a threshold bar applies).

Comparative negligence applies not only in simple negligence cases but also, in many jurisdictions, in strict products liability and other fault-based claims. It does not reduce recovery for intentional torts.

Pure Comparative Negligence

In pure comparative negligence jurisdictions, a plaintiff can recover some damages regardless of their own degree of fault; their recovery is simply reduced by their percentage of fault.

Key Term: Pure Comparative Negligence
A comparative system in which the plaintiff may recover damages reduced by their percentage of fault, even if the plaintiff is more at fault than the defendant.

Example: Plaintiff suffers $100,000 in damages but is found 90$10,000 (10% of $100,000) from the defendant.

Under pure comparative negligence, the plaintiff’s negligence can exceed the defendant’s (indeed, can be 99%), and recovery is still permitted for the defendant’s share.

Modified (Partial) Comparative Negligence

In modified comparative negligence jurisdictions, the plaintiff's recovery is reduced by their percentage of fault, but recovery is completely barred if the plaintiff's fault reaches a specified level.

Key Term: Modified Comparative Negligence
A comparative system that reduces the plaintiff’s recovery according to their percentage of fault but bars recovery once the plaintiff’s fault reaches or exceeds a threshold (commonly 50% or 51%).

Two common versions are tested:

• “More Than 50%” Bar (often called the “50% rule”):
  The plaintiff is barred only if their fault is more than 50%. If plaintiff is 50% or less at fault, they can recover (reduced accordingly).
• “50% or More” Bar (often called the “49% rule”):
  The plaintiff is barred if their fault is 50% or more. They may recover only if they are less than 50% at fault.

Be careful with terminology on the exam; read the question’s explanation of the jurisdiction’s rule rather than relying solely on labels like “51% bar” or “modified comparative.”

Worked Example 1.3

Plaintiff suffers $100,000 damages in an accident. A jury finds Plaintiff 50% at fault and Defendant 50% at fault.

a) In a pure comparative negligence jurisdiction, how much does Plaintiff recover?
b) In a jurisdiction where plaintiff is barred only if more than 50% at fault (i.e., plaintiff may recover if 50% or less at fault), how much does Plaintiff recover?
c) In a jurisdiction where plaintiff is barred if 50% or more at fault (i.e., plaintiff may recover only if less than 50% at fault), how much does Plaintiff recover?

Answer:
a) In a pure comparative negligence jurisdiction, Plaintiff recovers $50,000 (50$100,000). b) Under a “more than 50%” bar, Plaintiff is not more than 50% at fault, so Plaintiff still recovers $50,000. c) Under a “50$0.

Multiple Defendants in Modified Comparative Fault

When more than one defendant is involved, many modified comparative negligence jurisdictions use a combined comparison approach: the plaintiff’s percentage of fault is compared with the total negligence of all defendants combined.

Example pattern:

• Plaintiff is 40% at fault.
• Defendant A is 30% at fault.
• Defendant B is 30% at fault.

Total defendant fault = 60%. Plaintiff can recover (because 40% < 60%), but Plaintiff’s total damages will be reduced by 40%, and each defendant owes their proportionate share of the remaining 60%.

Worked Example 1.4

In a modified comparative negligence jurisdiction using a “50% or more” bar and combined comparison, Plaintiff suffers $200,000 in damages. A jury allocates fault as follows: Plaintiff 55%, Defendant A 25%, Defendant B 20%. Can Plaintiff recover anything?

Answer:
No. The plaintiff’s fault (55%) is greater than the combined fault of Defendants A and B (45%) and is also more than 50%. In a modified comparative negligence jurisdiction with a “50% or more” bar and combined comparison, Plaintiff’s fault being 50% or more completely bars recovery.

Comparative Negligence and Joint-and-Several Liability

Comparative negligence interacts with doctrines that allocate responsibility among multiple defendants:

• In many states, defendants remain jointly and severally liable for the plaintiff’s full recoverable damages (after reduction for plaintiff fault). The plaintiff can collect the entire reduced judgment from any one defendant, who may then seek contribution from other at-fault defendants.
• Some jurisdictions limit joint-and-several liability when a defendant’s percentage of fault is below a specified threshold (e.g., less than 10% at fault), making that defendant responsible only for its share.
• On the MBE, you will occasionally be asked to compute the plaintiff’s recovery and then identify how much one defendant must pay, given specified rules about joint and several liability and contribution.

Even when joint-and-several liability is limited, the plaintiff’s own fault is always deducted first (under comparative negligence) before responsibility is allocated among defendants.

Comparative Negligence and Other Doctrines

Comparative negligence affects several defenses and doctrines:

• Last Clear Chance:
  Largely obsolete in comparative negligence jurisdictions, because apportioning fault already mitigates the harshness of contributory negligence. Most courts no longer apply Last Clear Chance where comparative fault is in place.
• Intentional Torts:
  Comparative fault is not a defense to intentional torts (e.g., intentional battery), just as contributory negligence is not. The plaintiff’s negligence does not reduce damages for an intentional tort.
• Reckless/Wanton Conduct:
  Most courts allow the plaintiff’s negligence to reduce recovery even if the defendant’s conduct was reckless or wanton (but not intentional). Thus, comparative fault operates as a partial defense to reckless conduct.
• Negligence Per Se:
  A plaintiff’s negligence—shown by violating a safety statute—will be treated like any other form of comparative fault and used to reduce the plaintiff’s recovery according to their percentage of responsibility.
• Strict Liability:
  In many jurisdictions, comparative fault also applies to strict products liability and other strict liability claims; the plaintiff’s negligence (e.g., misuse or failure to follow warnings) can reduce recovery, but assumption of risk or misuse may still provide stronger defenses in some situations.

Comparative Negligence and Implied Assumption of Risk

As discussed later in detail, many jurisdictions have merged implied assumption of risk into comparative fault:

• The plaintiff’s decision to encounter a known risk is analyzed as part of the comparative negligence calculus.
• If the decision is unreasonable, it counts as negligence and reduces recovery.
• If the decision is reasonable (e.g., a rescuer risking harm to save another), many courts decline to reduce damages.

Assumption of Risk

Assumption of risk is another defense based on the plaintiff's conduct. It applies when the plaintiff voluntarily encounters a known risk associated with the defendant’s conduct or activity.

Key Term: Assumption of Risk
A defense asserting that the plaintiff knowingly and voluntarily accepted a particular risk, thereby relieving the defendant of some or all liability for resulting harm.

Assumption of risk can be express or implied. It is conceptually similar to the defense of consent in intentional torts, though it arises in negligence cases and often interacts with comparative fault.

Express Assumption of Risk

Key Term: Express Assumption of Risk
Assumption of risk manifested in explicit words, usually in a written waiver or release, by which the plaintiff agrees in advance to relieve the defendant of a duty of care for certain risks.

Typical features:

• Plaintiff signs a waiver, release, or exculpatory clause before engaging in an activity (e.g., rock climbing, skiing, gym use, recreational sports).
• If valid, the agreement can completely bar recovery for covered risks, even in comparative negligence jurisdictions.

Limits on enforceability (which can be tested):

• Many courts will not enforce waivers that:
  • Attempt to disclaim liability for intentional, reckless, or grossly negligent conduct.
  • Involve essential public services (e.g., emergency medical services) or common carriers.
  • Are against public policy because they involve a great disparity in bargaining power (certain adhesion contracts).
  • Are buried in fine print, ambiguous, or misleading.
• Some statutes specifically restrict or invalidate exculpatory clauses in particular contexts (e.g., residential leases, some employment contexts).

If an express assumption of risk clause is valid and clearly covers the risk that materialized, it remains a complete defense in most jurisdictions and is not transformed into comparative negligence.

Implied Assumption of Risk

Key Term: Implied Assumption of Risk
Assumption of risk inferred from the plaintiff’s conduct, rather than express words, where the plaintiff knows of a specific risk, appreciates its magnitude, and voluntarily chooses to encounter it.

Elements commonly required:

• Actual knowledge of the risk:
  The plaintiff is subjectively aware of the specific risk involved, not just that the activity is “generally dangerous.”
• Appreciation of the danger:
  Plaintiff understands the nature and extent of the risk (e.g., steep, icy slope; fast-moving foul balls at a baseball game).
• Voluntary choice to encounter the risk:
  Plaintiff freely decides to confront the risk when a reasonable alternative is available.

The voluntariness requirement is critical:

• If the plaintiff had no reasonable alternative (e.g., the only exit from a building is blocked by danger) or was compelled by circumstances, the choice may not be considered voluntary.
• A worker who must confront a risk to keep their job may not be deemed to have voluntarily assumed the risk under modern employment and safety laws.

Implied assumption of risk overlaps heavily with contributory/comparative negligence:

• Often, the same facts supporting implied assumption of risk (knowingly undertaking an obviously dangerous course of action) also show that the plaintiff failed to exercise reasonable care for their own safety.
• For that reason, many modern courts have merged implied assumption of risk into comparative negligence.

Primary vs. Secondary Assumption of Risk

Some courts distinguish between “primary” and “secondary” assumption of risk, especially in sports and recreational activity cases.

Key Term: Primary Assumption of Risk
A form of assumption of risk in which the defendant owes no duty (or a limited duty) to protect the plaintiff from certain basic, obvious risks of an activity; the plaintiff’s claim fails because the risk is part of the activity’s baseline dangers, not because the plaintiff was negligent.

• Primary assumption of risk is often treated as a no-duty rule:
  • Example: A spectator at a baseball game is generally held to accept the ordinary risk of being hit by an unintentional foul ball; the stadium is not required to eliminate that basic risk for all seats.
  • Similarly, participants in contact sports generally assume the risk of ordinary, expected physical contact consistent with the nature of the sport.
• Secondary assumption of risk involves the plaintiff’s voluntary encounter with a risk created by the defendant’s negligence—not a basic risk. In many jurisdictions, this is merged into comparative negligence and leads to a reduction, not a bar, of recovery.

On the MBE, when the facts show a basic risk of a sport or recreational activity (e.g., being tackled in football, falling while skiing), consider whether the defendant had any duty to protect against that risk, apart from providing reasonably safe facilities and equipment.

Implied Assumption of Risk in Comparative Negligence Jurisdictions

The status of implied assumption of risk varies:

• Merged/Abolished (Majority trend):
  Many states treat implied assumption of risk as just another form of plaintiff negligence. The plaintiff’s decision to face the risk is evaluated under the ordinary negligence standard and factored into comparative fault percentages.
  • If the plaintiff’s conduct in confronting the risk was unreasonable, damages are reduced.
  • If it was reasonable (e.g., a rescuer, or a person choosing between two dangers), there may be no reduction.
• Retained as separate defense (Minority):
  A minority of states retain implied assumption of risk as a complete bar to recovery, distinct from comparative negligence.

Express assumption of risk is generally not merged; it remains a distinct and complete defense if the waiver is valid.

Worked Example 1.4 – Spectator Scenario

Spectator attends a professional baseball game and sits in an unnetted seat behind third base. A foul ball, hit with unusual force, injures Spectator. The jurisdiction uses pure comparative negligence and follows the majority rule that implied assumption of risk is merged into comparative fault. Stadium raises assumption of risk as a defense. What is the likely result?

Answer:
Spectator is likely to recover, but damages may be reduced. Attending a baseball game and sitting in an unprotected area involves well-known risks of foul balls. Under the majority approach, Spectator’s choice is analyzed as comparative negligence rather than as a complete bar. The jury may conclude that Spectator unreasonably exposed himself to a known risk and reduce his recovery by a percentage reflecting his share of fault, but he is not completely barred.

Relationship Between Assumption of Risk and Comparative Negligence

In comparative negligence jurisdictions:

• Express assumption of risk (valid waiver) typically remains a complete defense and is not transformed into comparative negligence.
• Implied assumption of risk is often integrated into comparative fault analysis:
  • If the plaintiff’s risk-taking behavior is unreasonable, it is treated as negligent and reduces recovery proportionally.
  • If the risk is a basic part of an activity and the defendant has no duty to eliminate it (e.g., obvious basic risks of many sports), courts sometimes speak of primary assumption of risk, effectively limiting or negating the defendant’s duty for those basic risks.

Assumption of Risk and Intentional or Reckless Conduct

Assumption of risk and intentional/reckless conduct interact differently from contributory negligence:

• Assumption of risk is not generally a defense to intentional torts (e.g., battery, assault).
• It can be a defense to reckless or wanton conduct, especially where the plaintiff knowingly engaged in an extremely dangerous activity with awareness of the specific risks (e.g., knowingly riding in a drag race car). Courts scrutinize such defenses carefully.

Worked Example 1.4 – Skier Scenario

Skier signs a release form at a ski resort explicitly stating they assume all risks of skiing, including negligent slope maintenance. Skier is later injured due to the resort's negligent failure to mark a hidden ditch. The jurisdiction applies comparative negligence and upholds valid express waivers. Can Skier recover?

Answer:
Likely no. Skier expressly assumed the risk via the written release, which specifically covered risks arising from negligent slope maintenance. Assuming the waiver is clear, not unconscionable, and does not attempt to disclaim reckless or intentional conduct, it will be enforced as an express assumption of risk. This operates as a complete defense, barring Skier’s recovery even in a comparative negligence jurisdiction.

Assumption of Risk vs. Contributory/Comparative Negligence

Although the doctrines often overlap, they are conceptually distinct:

• Contributory/comparative negligence focuses on whether the plaintiff exercised reasonable care for their own safety.
• Assumption of risk focuses on whether the plaintiff subjectively knew of the risk and voluntarily chose to encounter it.

Examples:

• A plaintiff fails to look when crossing the street: this is negligence but not necessarily assumption of risk.
• A plaintiff who knows a driver is drunk but chooses to ride along anyway: this may constitute both negligence (unreasonable decision) and assumption of risk (knowing and voluntary choice).

On the MBE:

• In contributory negligence jurisdictions that retain implied assumption of risk as a separate defense, either doctrine can bar recovery.
• In comparative negligence jurisdictions following the majority approach, implied assumption of risk is folded into comparative fault; the plaintiff’s decision to encounter the risk affects the percentage reduction, not whether recovery is barred.

Contributory Fault and Intentional Torts: A Common Trap

On the MBE, contributory or comparative negligence defenses are occasionally paired with intentional tort fact patterns to test whether you recognize their inapplicability.

Worked Example 1.4 – Intentional Torts

A store security guard, in plain clothes, grabs a customer’s arm without warning during a dispute and knocks the customer to the floor, causing injuries. The customer sues the store for battery, and the store asserts the affirmative defense of contributory negligence, alleging the customer “should have stayed calm.” Traditional contributory negligence rules apply. Is contributory negligence a valid defense?

Answer:
No. Battery is an intentional tort, and contributory negligence is not a defense to intentional torts. The customer’s alleged carelessness in arguing or pulling away cannot bar recovery for a deliberate harmful or offensive touching. The court should strike the contributory negligence defense.

Recognizing this boundary—negligence defenses do not apply to intentional torts—is a frequent MBE issue. In addition, assumption of risk is also generally not a defense to intentional torts, although it can sometimes apply to reckless or wanton conduct.

Key Point Checklist

This article has covered the following key knowledge points:

• Contributory negligence (common law) completely bars a plaintiff's recovery if the plaintiff is at all negligent, even 1% at fault.
• The standard for contributory negligence is the same reasonable person standard used for ordinary negligence; rescuers are treated generously, and remaining in known danger can be contributory negligence.
• Plaintiff’s violation of a safety statute can constitute contributory or comparative negligence, but not when the statute is designed to protect that class from their own lack of judgment.
• Contributory negligence is distinct from avoidable consequences: contributory negligence concerns conduct before or at the time of the accident, whereas avoidable consequences involve failure to mitigate damage afterward.
• Contributory negligence is not a defense to intentional torts and generally not to willful or wanton misconduct.
• Last Clear Chance allows a contributorily negligent plaintiff to recover if the defendant had the final clear opportunity to avoid the injury and failed to use reasonable care.
• Helpless danger and inattentive danger situations differ in the knowledge required of the defendant in applying Last Clear Chance.
• Imputed contributory negligence is limited to relationships supporting vicarious liability (e.g., employer–employee, partners) and is generally disfavored.
• Comparative negligence (majority rule) reduces a plaintiff’s recovery in proportion to their percentage of fault rather than barring it entirely.
• Pure comparative negligence allows recovery regardless of the plaintiff’s percentage of fault (reduced accordingly); on the MBE, assume this system unless specified otherwise.
• Modified comparative negligence bars recovery once the plaintiff’s fault reaches a specified threshold (e.g., 50% or more), with many jurisdictions using combined comparison for multiple defendants.
• Comparative fault is not a defense to intentional torts, but it usually reduces recovery even where the defendant’s conduct is reckless or wanton.
• Comparative negligence interacts with joint-and-several liability: plaintiff’s damages are reduced for plaintiff fault, then remaining damages are allocated among defendants according to jurisdictional rules.
• Assumption of risk is based on the plaintiff’s voluntary encounter with a known risk and can be express (e.g., waivers) or implied (inferred from conduct).
• Express assumption of risk, when valid, is generally a complete bar to recovery, even in comparative negligence jurisdictions.
• Implied assumption of risk often merges into comparative fault analysis; the plaintiff’s risk-taking is treated as negligent behavior and reduces damages rather than barring recovery outright in many jurisdictions.
• Primary assumption of risk operates as a no-duty rule for basic risks of certain activities (especially sports and recreation).
• Assumption of risk is not generally a defense to intentional torts, though it may apply to reckless conduct in limited circumstances.
• On MBE questions, always identify the jurisdiction’s fault system (contributory, pure comparative, modified comparative) and any special rules (e.g., Last Clear Chance, merger of assumption of risk) before analyzing plaintiff fault.

Key Terms and Concepts

• Affirmative Defense
• Contributory Fault
• Contributory Negligence
• Last Clear Chance
• Helpless Danger
• Inattentive Danger
• Imputed Contributory Negligence
• Comparative Negligence
• Comparative Fault
• Pure Comparative Negligence
• Modified Comparative Negligence
• Avoidable Consequences
• Assumption of Risk
• Express Assumption of Risk
• Implied Assumption of Risk
• Primary Assumption of Risk