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Nov. 27 Torts: Affirmative Defenses

Affirmative defenses are very helpful in torts because they are excellent defenses to negligence. We’ll first compare contributory and comparative negligence. Contributory negligence is a complete bar to recovery. In Butterfield v. Forrester, Forrester put a pole in the middle of the street and at the same time, Butterfield was riding on his horse recklessly. The court held that if a person acting with reasonable and ordinary care could have seen and avoided the obstruction, and if Butterfield was not acting so, the verdict should be for Forrest, which it was and Butterfield couldn’t recover. In McIntyre v. Ballentine, both were in an accident where McIntyre had been drinking and Ballentine was speeding. The court specifically overruled the state’s contributory negligence common law in favor of comparative negligence. It held that so long as P’s negligence is less than D’s, P may recover. P’s damages are to be reduced in proportion to the percentage of the total negligence attributable to P. In cases of multiple tortfeasors, P will be entitled to recover so long as P’s fault is less than the combined fault of all tortfeasors. There are two kinds of contributory negligence. The first is pure which means the award equals whatever percentage the defendant is at fault for. The second is modified which takes on two forms: a 50% rule and a 49% rule. In each rule, if the plaintiff’s negligence exceeds either 50% or 49% (depending on the jurisdiction you’re in), the plaintiff can’t recover.

The next affirmative defense is assumption of risk. Assumption of risk comes in two varieties: express and implied, but I’ll only deal with express assumption or risk here. A good example of express assumption of risk is Seigneur v. National Fitness Institute Inc. Seigneur went to the health club and signed a consent form that said the club wasn’t liable for any injury. She was, of course, injured and sued the club. The court held that an exculpatory clause is sufficient to insulate the party from his or her own negligence as long as its language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. For such a clause to be void it has to violate public policy or the defendant has to possess a decisive bargaining advantage over the customer.


November 27, 2006 - Posted by | Torts


  1. Um, I am about to take my torts I final, and our professor taught us that contributory negligence is no longer an absolute defense to negligence. furthermore, he taught us that once contributory negligence is found, in comparative negligence jurisdictions, the question then moves to: “How much at fault is plaintiff?” which may negate or lessen recovery for him/her. How accurate is this???

    Comment by Arose1313 | August 17, 2007 | Reply

  2. No matter, what, do what your professor says. As far as contributory negligence being an absolute defense, I believe it depends on the state. I know some states use contributory negligence (at least in some cases). And the part about the question is accurate. If the jury finds that the plaintiff is at fault, they have to determine how much fault to assign to the plaintiff and that will determine how much, if anything, the plaintiff can recover. That said, do what your professor says. He (or she) is the one grading you and just do whatever the professor told you. Good luck on your final.

    Comment by thesaint258 | August 17, 2007 | Reply

  3. Where do I find good material addressing the similarities & differences of the law of contract and tort? U.K. material is especially appreciated but any help will do.

    Comment by E Viano | August 31, 2007 | Reply

  4. I’m not sure where to find UK material specifically, but I imagine there are some law review articles on it. Go to a law library close to you and ask the librarians for help.

    Comment by thesaint258 | August 31, 2007 | Reply

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    Comment by arnlbido xpusq | September 11, 2008 | Reply

  6. […] Nov. 27 torts: affirmative defenses « first-year law review Affirmative defenses are very helpful in torts because they are excellent defenses to negligence. we’ll first compare contributory and comparative. […]

    Pingback by contract law affirmative defenses | Order Letters | November 22, 2014 | Reply

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