What You'll Learn

  • Plaintiff fault systems 2. Last clear chance
  • Assumption of risk 4. Joint and several liability
  • Contribution and settlements

Educational information only; not legal advice. This article is a general study aid and should be checked against current authority and course materials.

1. Identify the Fault System

Contributory negligence Traditional rule: any negligence by the plaintiff that causes the injury completely bars recovery. A small number of jurisdictions retain it. Pure comparative fault The plaintiff's damages are reduced by the percentage of fault even when the plaintiff is more responsible than the defendant.

Modified 49% system The plaintiff must be less than 50% at fault. Equal fault bars recovery. Modified 50% system The plaintiff may recover when 50% or less at fault, but is barred when fault exceeds 50%.

In a contributory-negligence jurisdiction, the last-clear-chance doctrine may permit recovery when the defendant had a final reasonable opportunity to avoid the harm after the plaintiff could no longer do so.

2. Separate Assumption of Risk from Ordinary Fault

Assumption of risk requires knowledge and voluntary acceptance of a danger. The effect depends on whether the plaintiff consented to eliminate a duty, signed a valid waiver, or merely proceeded unreasonably in the face of a risk.

Doctrine Core question Typical effect

Express assumption Did a clear, freely made agreement cover this risk without violating public policy? May bar the claim within the valid scope of the waiver.

Primary assumption Did the plaintiff accept an inherent risk so the defendant owed no duty as to that risk? No negligence for the inherent risk, but not for added negligence outside it.

Implied secondary assumption Did the plaintiff knowingly and voluntarily encounter a risk created by the defendant? Often merged into comparative fault; effect varies by jurisdiction.

Joint and several liability Did multiple defendants cause one indivisible injury? Plaintiff may collect the full judgment from one liable defendant in systems retaining the rule.

Several liability Does each defendant pay only the assigned percentage? Plaintiff bears the risk that another tortfeasor is insolvent.

Contribution or indemnity Did one defendant pay more than a fair share, or bear only derivative liability? Contribution reallocates shares; indemnity shifts the entire payment in proper cases.

Key Takeaway

Joint and several liability most naturally applies to concerted action, a common duty, or independent acts producing an indivisible injury. Settlement-credit rules differ: jurisdictions may subtract the settlement dollars, an equal share, or the settling party's percentage of responsibility.

Assumption requires actual appreciation

A general awareness that an activity can be dangerous is not always enough. The plaintiff must know and voluntarily accept the particular risk, with time and capacity to choose.

One injury versus separate injuries

Joint liability concerns an indivisible harm. When later events produce separate or apportionable injuries, each defendant is ordinarily responsible only for the harm caused.

3. Allocate Fault Without Losing the Elements

1 Prove the prima facie case against each defendant before allocating fault. 2 Identify the jurisdiction's contributory, pure comparative, or modified comparative rule. 3 Analyze whether the plaintiff failed to use reasonable care and whether that failure caused the harm. 4 Test express, primary, and secondary assumption of risk separately. 5 Decide whether the injury is indivisible and whether joint and several liability applies. 6 Account for settlement credits, contribution, indemnity, and immune or insolvent actors where the jurisdiction permits.

Key Takeaway

A plaintiff is 40% at fault, one defendant is 30% at fault, and another defendant is 30% at fault. In a pure comparative system, the plaintiff may recover 60% overall. Whether either defendant can be required to pay more than 30% depends on the jurisdiction's joint-and-several-liability rule.

Common Mistake

Do not label conduct "assumption of risk" merely because the plaintiff knew danger existed. Explain knowledge, appreciation, voluntariness, and the jurisdictional effect.

Primary Authorities

  • • Butterfield v. Forrester (contributory negligence).

  • • Davies v. Mann (last clear chance).

  • • McIntyre v. Balentine (modified comparative fault).

  • • Seigneur v. National Fitness, Inc. (limits on exculpatory agreements).

  • • Bierczynski v. Rogers (concerted action and racing).

  • • Knell v. Feltman (contribution among joint tortfeasors).

Exam-ready conclusion

Plaintiff fault reduces or bars recovery according to the jurisdiction. Shared liability then determines who must pay an indivisible loss and how defendants reallocate payments among themselves.