Affirmative Defenses to Negligence

• Author: Eric E. Johnson
• Pages: 353-399

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10. Affirmative Defenses to

Negligence

“Offense sells tickets, but defense wins championships.”

– attributed to Paul William “Bear” Bryant

In General

There are three ways for a defendant to win a negligence case. First,

and easiest, the defendant can just stand by as the plaintiff fails to put

on evidence to prove each of the prima facie elements. If that

happens at trial, the defendant can successfully move for a directed

verdict – thereby winning the case without putting on a single witness

or, theoretically, even without asking a single question of any of the

plaintiff’s witnesses. Assuming the plaintiff puts on a prima facie

case, the second way for a defendant to win is to make out a rebuttal

defense. A rebuttal defense is established by offering evidence to

rebut the plaintiff’s evidence for one or more of the prima facie

elements established by the plaintiff. But the defendant need not

rebut a prima facie case: The third and final way for a defendant to

win is to prove an affirmative defense.

Even if a plaintiff makes out a prima facie case, and even if the

defendant has no rebuttal evidence whatsoever, the defendant can

still obtain victory by proving an affirmative defense. Sometimes an

affirmative defense will effect a complete victory for the defendant.

Other times, an affirmative defense will effect a partial victory,

shielding the defendant from some portion of the damages.

When it comes to affirmative defenses, the burden of proof is on the

defendant. That is why it is called an “affirmative” defense – proving

it up is the affirmative obligation of the defendant. In comparison,

the first two ways for defendants to win – pointing out the failure of

proof on the prima facie case or rebutting an element – can be

thought of as “negative” defenses. There, the defense is premised on

what the plaintiff lacks. With an a ffirmative defense, the defendant

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has to burden of putting all the needed evidence in front of the

factfinder.

The standard of proof for an affirmative defense is the same as for

the plaintiff’s prima facie case – preponderance of the evidence. And,

like a cause of action, an affirmative defense may be broken down

into elements. Where an affirmative defense is structured as a series

of elements, the defendant will have to prove each one of the

elements by a preponderance of the evidence.

Keep in mind that an affirmative defense trumps the plaintiff’s prima

facie case. Even if a plaintiff went far beyond its burden of proving

every element by a mere preponderance of the evidence – suppose,

for instance that a plaintiff proved every element to a 100% certainty

– it only takes an affirmative defense with each element proved by a

mere preponderance of the evidence to block the plaintiff’s recovery.

There are three main affirmative defenses that are particular for

negligence claims: contributory negligence, comparative negligence,

and assumption of the risk. They are the subject of this chapter.

The first two affirmative defenses – contributory negligence and

comparative negligence – work by pointing the finger back at the

plaintiff and blaming the plaintiff’s injury on the plaintiff’s own

negligence. Contributory negligence and comparative negligence are

alternatives to one another. Most jurisdictions have the defense of

comparative negligence. The few that do not have the contributory

negligence defense.

The defense of assumption of the risk is just what it sounds like: The

plaintiff agreed to shoulder the risk that something would go wrong,

so when it does, the plaintiff cannot come to the defendant for

compensation.

Plaintiff’s Negligence

If the plaintiff’s own negligence worked to bring about the harm the

plaintiff complains about, then the defendant can use the plaintiff’s

negligence as a defense. Depending on the jurisdiction, the defense

will either be of the contributory-negligence type or the comparative-

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negligence type. Within either type, there are a myriad of possible

differences between jurisdictions.

All of tort law is subject to differences from one jurisdiction to

another. But there is probably no more important and fundamental

set of differences in common-law doctrine than those having to do

with the affirmative defense premised on the plaintiff’s negligence. If

you were a personal-injury attorney or an insurance-defense attorney

moving to a new state, the first thing you would want to learn is how

the law regards the plaintiff’s negligence as a defense.

The first and most important distinction is whether the jurisdiction

recognizes the comparative negligence defense or the contributory

negligence defense. Contributory negligence is the older doctrine, and

it is more defendant friendly. Comparative negligence – also called

“comparative fault” – is the newer doctrine, and it is more plaintiff

friendly. Under contributory negligence, if the plaintiff was a little bit

negligent, then the plaintiff loses. Under comparative negligence, the

plaintiff’s negligence is not necessarily a bar to recovery, but it will at

least serve to reduce the total amount of the award.

Contributory Negligence

The doctrine of contributory negligence holds that if the defendant

can prove that the plaintiff’s own negligence contributed to the injury

that the plaintiff complains of, then the defendant is not liable. To be

more exact, proving a case for contributory negligence involves

proving that the plaintiff’s conduct fell below the standard of care a

person is expected adhere to for one’s own good, and that such

conduct was an actual and proximate cause of the injury that the

plaintiff is suing on.

To break the defense of contributory negligence into elements, we

can start with the elements of negligence. To review, those are: owing

a duty, breaching the duty, actual causation, proximate causation, and

the existence of an injury. For purposes of contributory negligence,

we can throw a couple of those elements out. It generally goes

without saying that a person owes a duty to one’s self, so there is no

need to have the existence of duty as an element. Similarly, there is

no point in discussing the existence of an injury, since the occasion