A Video Explaining Defenses to Tort Claims

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Contributory and Comparative Negligence

At one time, a plaintiff who contributed in any amount to his or her own injury recovered nothing. The California Supreme Court thought the result was harsh. A person 99% responsible for another’s injury would have an absolute defense. The California Supreme Court decided that almost all accidents, all negligent torts, were the result of negligent actions of both parties.

The California Supreme Court enunciated in Li v. Yellow Cab, a system known as comparative negligence where the jury was instructed to determine the percentage of responsibility attributable to both parties.
Assumption of the Risk

Primary assumption of risk generally absolves the defendant of a duty of care toward the plaintiff with regard to injury incurred in the course of a sporting or other activity covered by the doctrine. A person who voluntarily and knowingly exposes him- or herself to obvious dangers is deemed to have assumed the risk of injury. It is not contributory negligence. It is more like consent to the act. The defendant’s conduct involves certain dangers or risks, which the plaintiff voluntarily accepts.
Last Clear Chance

The defense of “last clear chance” is an exception to the defense of contributory negligence. Since 1975, it has been subsumed into comparative negligence.