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A defendant in a negligence suit usually tries to negate one of the elements of the plaintiff’s cause of action.  When 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 raises defenses that will reduce or eliminate his/her liability.  These defenses include assumption of risk, contributory negligence, and comparative negligence.

The principal defenses for negligence are assumption of risk and contributory negligence.  The general principle of assumption of risk is that “a plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm”[i].  In assumption of risk, a plaintiff who enters into a risky situation cannot claim damages when injury occurs.  For example, when a person purchases a residential grade carpet, with the knowledge that it will not provide the wear required in his/her commercial installation, the designer is absolved of negligence.

Assumption of risk includes:

  • knowledge and awareness of danger or risk; and
  • failure to assume risk for negligence or willful disregard on someone else’s part.


Under the common-law rule of contributory negligence, a plaintiff whose own negligence was a contributing cause of his/her injury is barred recovery  from a negligent defendant.  In using contributory negligence as a defense, it must be shown that both sides have been negligent and that injury had resulted.  This comes from the idea that every one look out for his/her own interests and safety.

Contributory negligence includes:

  • fault of person to exercise the required standard of care for own safety; and
  • when the negligence is shown, defendant is totally absolved.


A finding of contributory negligence on the part of a plaintiff operates as a complete bar to recovery and is independent of any negligence on the part of the defendant.  Contributory negligence occurs when there is breach of duty of the plaintiff to exercise due care for his/her own safety with respect to the occurrence about which s/he complains, and when the failure to exercise due care for his/her own safety is one of the proximate contributing causes of the injury, it will bar recovery[ii].

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm”[iii].

The doctrine of contributory negligence often leads to unfair results.  When a defendant’s negligence is the overwhelming cause of the plaintiff’s injury, even slight negligence on the part of the plaintiff completely bars the recovery.  Additionally, the negligence of corporations, manufacturers, and landowners creates no corresponding risk of injury to themselves.  In such cases the doctrine of contributory negligence completely eliminates liability for their negligence and reduces their incentive to act safely.  Thus many of the states adopted comparative negligence in place of contributory negligence.  Under comparative negligence a plaintiff’s negligence is not a complete bar to his/her recovery.  Therefore, plaintiff’s damages is reduced by whatever percentage his/her own fault contributed to the injury.

Comparative negligence is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff’s own negligence contributed to cause the injury.  Comparative negligence abrogates the common-law concept of contributory negligence, thus relieves both parties and substitutes apportionment of the damages by fault[iv].

A substantial number of states have adopted comparative-negligence statutes of general applicability.  “In an action based on fault, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery”[v].

The claimant is barred from recovery when his/her contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages.  The defense of incurred risk is subsumed by the concept of fault in a comparative fault scheme.  As a component of fault, apportionment scheme reduces or eliminates the plaintiff’s recovery depending on the degree of the plaintiff’s fault[vi].

Moreover, the owner of the premises is not liable to one who goes thereon as an invitee for injuries resulting from a danger that was obvious to the latter or should have been observed in the exercise of ordinary care[vii].

[i] Restat 2d of Torts, § 496A.

[ii] Champs Convenience Stores, Inc. v. United Chemical Co., 329 N.C. 446, 455 (N.C. 1991).

[iii] Restat 2d of Torts, § 463.

[iv] Traphagan v. Mid-America Traffic Marking, 251 Neb. 143, 160 (Neb. 1996).

[v] Burns Ind. Code Ann. § 34-51-2-5.

[vi] Hopper v. Carey, 716 N.E.2d 566, 575 (Ind. Ct. App. 1999).

[vii] Dooley v. Economy Store, 109 Vt. 138, 141 (Vt. 1937).

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