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6.5.1: Defenses to Negligence Claims


  • Read about affirmative defenses to negligence claims
  • Complete the exercise

When a defendant is sued, the defendant may assert affirmative defenses. Affirmative defenses are arguments that a defendant presents to defeat all or part of a plaintiff’s claim,

Two defenses that a defendant may raise in response to a claim of negligence are contributory negligence and assumption of the risk.

  1. Contributory Negligence

A defendant may be able to argue as a defense that the plaintiff’s own carelessness  – – contributory negligence – – was to blame for all or part of the accident.  If the defendant can prove that the plaintiff was careless, the defendant’s liability may be eliminated or reduced. 

For example, in our story at the beginning of this unit, Patty ran out of the coffee shop with a cup of coffee that she just learned was too hot. Because a reasonable person would not run with a very hot cup of coffee, the deliveryman and Starrocks could argue that even if they were careless, Patty was careless, too.

2. Assumption of the Risk

A defendant may argue that a plaintiff knowingly accepted certain risks. This is called “assumption of the risk” and will eliminate defendant’s liability if the defendant can prove that the plaintiff was aware of the risk and accepted the the risk either expressly or by implication (“implied assumption of the risk”).

A plaintiff can expressly waive his right to sue a defendant for negligence by signing a contract, known as a liability waiver.   For example, a fitness club might require its customers to sign a form stating that they will not hold the fitness club liable for injuries due to the club’s negligence.  Most jurisdictions in the United States will enforce liability waivers.   

 Plaintiffs sometimes assume the risk by their conduct.  A typical example is where a plaintiff attends a baseball game.  Courts will say that by attending the game the plaintiff is assuming a risk that he will be struck by a baseball and cannot sue the stadium for negligence.  Courts explain that the fan knew that there was a possibility that a baseball would fly in his direction and he accepted that risk.