Start Here: 5 Things You MUST Know
Contributory negligence = ANY plaintiff fault bars ALL recovery (harsh old rule, only a few states)
50% rule = recover at 50% fault or less. 49% rule = recover at under 50% ONLY. At exactly 50%: recover under 50% rule, get NOTHING under 49% rule
Assumption of risk requires BOTH: full knowledge of the risk AND voluntary choice to face it
Interspousal immunity has been abolished in ALL states (in whole or in part). This is a "know it" test point
Independent contractor torts: generally NOT liable EXCEPT for 3 exceptions (negligent employment, nondelegable duties, inherently dangerous work)
1. Contributory Negligence
The Old, Harsh Rule
If the plaintiff was negligent AT ALL — even 1% at fault — the plaintiff gets NOTHING. Total bar to recovery. Only a few states still follow this rule (Alabama, Maryland, North Carolina, Virginia, and D.C.).
Real-World Scenario: Contributory Negligence
The Setup: A pedestrian jaywalks across a busy street at night wearing dark clothing.
What Happens: A driver who is texting hits the pedestrian.
The Result: In a contributory negligence state, the pedestrian gets NOTHING. Even though the driver was texting, the pedestrian was also negligent by jaywalking. ANY fault by the plaintiff = zero recovery.
2. Comparative Negligence
A fairer system that replaced contributory negligence in most states. Instead of barring ALL recovery, the plaintiff's damages are reduced by their percentage of fault. There are several variations.
Pure Comparative Negligence
Plaintiff can recover damages reduced by their fault, NO MATTER HOW MUCH at fault. Even at 99% fault, they still recover 1%.
Example: Plaintiff is 90% at fault, defendant is 10%. Damages = $100,000. Plaintiff recovers $10,000 (10% of damages).
Criticism: A party whose negligence was the MAJOR factor in causing the harm can still recover from the less negligent party.
50 Percent Rule ("Not Greater Than")
Plaintiff recovers ONLY if their negligence is NOT GREATER THAN (50% or less of) the defendant's.
At 50% fault: Damages = $100,000. Plaintiff recovers $50,000. At 51% fault: plaintiff gets NOTHING.
49 Percent Rule ("Less Than")
Plaintiff recovers ONLY if their negligence is LESS THAN (strictly under 50% of) the defendant's.
At 49% fault: Damages = $100,000. Plaintiff recovers $51,000. At 50% fault (even though equally at fault): plaintiff gets NOTHING.
Slight Versus Gross Rule
Plaintiff recovers only if their negligence was "slight" compared to the defendant's "gross" negligence. The narrowest form, rarely used.
The Critical 50% vs. 49% Distinction (FAVORITE EXAM TRICK)
| Plaintiff's Fault | Pure Comparative | 50% Rule | 49% Rule |
|---|---|---|---|
| 30% at fault | Recovers 70% | Recovers 70% | Recovers 70% |
| 49% at fault | Recovers 51% | Recovers 51% | Recovers 51% |
| 50% at fault | Recovers 50% | Recovers 50% | NOTHING |
| 51% at fault | Recovers 49% | NOTHING | NOTHING |
| 90% at fault | Recovers 10% | NOTHING | NOTHING |
3. Last Clear Chance Doctrine
Designed to soften the harsh results of contributory negligence. Even if the plaintiff was negligent, if the DEFENDANT had the "last clear chance" to avoid the injury and did not take it, the defendant is still liable.
Real-World Scenario: Last Clear Chance
The Setup: A pedestrian negligently crosses the street without looking.
What Happens: A driver sees the pedestrian from 200 feet away but is looking at their phone and does not brake.
The Result: Even though the pedestrian was negligent, the driver had the LAST clear opportunity to avoid the accident (saw from 200 feet away) and failed to act. The driver is liable despite the pedestrian's own negligence.
Exam Tip
This doctrine is mainly used in contributory negligence states to avoid the "total bar" result. In comparative negligence states, it is less important because fault is already shared.
4. Assumption of Risk
The plaintiff voluntarily chose to face a known danger. If the plaintiff knew about the risk and voluntarily took it on, they cannot complain when the risk materializes.
Full Knowledge
Plaintiff had full knowledge of the specific risk
Voluntary Choice
Plaintiff voluntarily chose to incur the risk
Real-World Scenario: Assumption of Risk
The Setup: A skier reads and signs a waiver at a ski resort stating skiing involves risks of falls, collisions, and icy conditions.
What Happens: The skier hits an icy patch on an intermediate trail and breaks their leg.
The Result: The skier assumed the risk. They had full knowledge (signed the waiver, icy conditions are a known hazard) and voluntarily chose to ski. The resort can use this defense.
Important Limitation
If the injury was caused by the resort's SEPARATE negligence (broken chairlift, unmarked cliff), assumption of risk may NOT apply because the skier did not assume THAT specific risk.
5. Release of Liability & Immunities
Release of Liability
A contractual agreement where one party gives up their right to sue for negligence. Common in sporting events, gym memberships, and adventure activities. Can bar recovery even for negligence, but courts may refuse to enforce if unconscionable, against public policy, or involving gross negligence.
Immunities
Sovereign (Governmental) Immunity
"The king can do no wrong" — governments cannot be sued without consent. Most states have partially waived this.
STILL IMMUNE
Governmental functions: Activities ONLY government can do (police, fire, courts). Also discretionary/administrative acts involving judgment and policy-making.
NOT IMMUNE
Proprietary functions: Activities that COULD be done by private entities (bus system, swimming pool, parking garage). Also ministerial acts (routine tasks like filling potholes).
Interspousal Immunity
Old rule that spouses could NOT sue each other. ALL states have abolished this in whole or in part. Spouses CAN now sue each other.
FREQUENTLY TESTED POINT
Parent-Child Immunity
Old rule that children could NOT sue parents for negligence. Most states have modified or limited this, but some retain it for parental authority decisions.
6. Independent Contractors & Contractual Liability
General Rule
A person who hires an independent contractor is generally NOT liable for the contractor's torts. This is because the hiring party does not control HOW the work is done.
Three Exceptions (When You ARE Liable)
1. Negligent Employment
You knew or should have known the contractor was incompetent.
2. Nondelegable Duties
You delegated a duty the law says you CANNOT delegate (certain safety obligations).
3. Inherently Dangerous Work
The work itself is inherently dangerous (demolition, blasting, hazardous materials).
Real-World Scenario: Inherently Dangerous Work
The Setup: A general contractor hires a subcontractor for demolition work on an old building.
What Happens: The subcontractor uses too much explosive, damaging neighboring buildings.
The Result: The general contractor IS liable even though the subcontractor is independent. Demolition with explosives is inherently dangerous work. You cannot avoid liability by delegating inherently dangerous work.
Three Types of Contractual Liability Agreements
Liquidated Damages Agreement
A clause specifying a predetermined amount to be paid if a party breaches. Enforceable when damages would be hard to calculate and the amount is reasonable. NOT enforceable if the amount is actually a "penalty."
Hold-Harmless (Indemnity) Agreement
One party agrees to protect the other from liability for certain losses.
Limited Form
Covers indemnitor's OWN negligence only
Intermediate Form
Covers BOTH parties' negligence
Broad Form
Covers ALL losses, even indemnitee's sole negligence
Exculpatory Agreement
One party agrees in advance NOT to hold the other liable for future negligence. Valid when ALL three conditions are met:
Not adverse to public interest
Party is NOT under a duty to perform
No unequal bargaining power
7. Landowner & Occupier Liability
Natural Conditions
Generally NO duty to protect from natural conditions (fallen trees, ice, animal burrows). EXCEPTION: In urban areas, a duty may exist if natural hazards endanger people on adjacent public sidewalks and the owner knows about them.
Artificial Conditions
Things built by humans create greater liability. Hidden artificial dangers can create liability. Landowners must keep adjacent sidewalks/streets safe from hazards created by artificial conditions.
Attractive Nuisance Doctrine
A special rule for protecting children. If a landowner has an artificial condition likely to attract children who are too young to understand the danger, the landowner may be liable even if the child was technically a trespasser.
Classic examples: Unfenced swimming pools, construction sites, abandoned machinery, trampolines.
Example
The Setup: A homeowner has an unfenced pool bordering a neighborhood with young children. A 5-year-old wanders in and nearly drowns. Despite the child being a trespasser, the homeowner may be liable because the pool is an artificial condition certain to attract children who cannot appreciate the danger.
Landlord Liability
Landlords must maintain common areas (hallways, stairways, parking lots) in safe condition. Individual unit duty shifts to tenant UNLESS: the landlord knew of a hidden defect, agreed to make repairs and failed, or negligently made repairs.
Cheat Sheet
Print this page for quick referenceNegligence Defenses
- Contributory = ANY fault bars ALL recovery
- Pure comparative = always recover (even 99%)
- 50% rule = recover at 50% or less
- 49% rule = recover UNDER 50% only
Other Defenses
- Last clear chance = softens contributory negligence
- Assumption of risk = knowledge + voluntary choice
- Release of liability = contractual waiver
- Interspousal immunity = ABOLISHED everywhere
Independent Contractors
- Generally NOT liable for contractor's torts
- Exception 1: Negligent employment
- Exception 2: Nondelegable duties
- Exception 3: Inherently dangerous work
Sovereign Immunity
- Governmental functions = STILL immune
- Proprietary functions = NOT immune
- Discretionary acts = immune
- Ministerial acts = NOT immune
Landowner Liability
- Natural conditions = generally no duty
- Artificial conditions = greater liability
- Attractive nuisance = protects child trespassers
- Landlords = must maintain common areas
Contractual Agreements
- Liquidated damages = preset breach amount
- Hold-harmless = indemnity (3 forms)
- Exculpatory = waive future negligence claims
Exam Trap Alerts
1. The 50% vs. 49% Rule Trap
At EXACTLY 50% fault: plaintiff RECOVERS under the 50% rule but gets NOTHING under the 49% rule. This ONE percentage point difference is a favorite exam trick.
2. Contributory Negligence Is NOT the Majority Rule
Most states have moved to comparative negligence. Only a few states still use pure contributory negligence. Do not assume all states bar recovery for any plaintiff fault.
3. Assumption of Risk Requires BOTH Elements
If the plaintiff did not know about the specific risk, the defense fails even if they voluntarily participated. Knowledge of general risks is not enough — it must be the specific risk that caused harm.
4. Interspousal Immunity = ABOLISHED
ALL states have abolished interspousal immunity in whole or in part. Spouses CAN sue each other. This is a simple "know it" exam point — do not say it still exists anywhere.
5. Independent Contractor Liability Has Three Exceptions
Do NOT think a person is NEVER liable for an independent contractor's torts. There are three clear exceptions: negligent employment, nondelegable duties, and inherently dangerous work.
6. Natural Conditions vs. Urban Areas
Generally no duty for natural conditions, but in urban areas there CAN be a duty if natural hazards endanger people on adjacent public paths and the owner knows about them.
Quick Reference Summary
Contributory Negligence
ANY plaintiff fault = ZERO recovery. Old, harsh rule. Few states.
Pure Comparative
Always recover, even at 99% fault. Reduced by fault percentage.
50% vs. 49% Rule
50% = recover at 50% fault. 49% = NOTHING at 50% fault. Key trap.
Last Clear Chance
Softens contributory negligence. Defendant had last chance to avoid harm.
Assumption of Risk
Full knowledge + voluntary choice. Both required.
Sovereign Immunity
Governmental functions = immune. Proprietary functions = NOT immune.
Interspousal Immunity
ABOLISHED in all states. Spouses CAN sue each other.
Independent Contractors
Generally not liable. 3 exceptions: negligent hire, nondelegable, dangerous work.
Attractive Nuisance
Artificial condition + attracts children + kids can't understand danger.