Recall from Chapter 4 the three-part structure of arguments available to defendants: denials, justifications, and excuses. This chapter examines two powerful justifications in negligence law: contributory negligence and assumption of risk. Contributory negligence is a defense based on the plaintiff's failure to take reasonable care. Assumption of risk is a defense based on the notion that the plaintiff consented to the defendant's conduct, which annuls the plaintiff's theory of negligence.

CONTRIBUTORY NEGLIGENCE

The law of contributory negligence repeats much of what has been said in previous chapters about negligence. Since damages are asserted in the plaintiff's negligence claim against the defendant, the defendant's contributory negligence charge involves only three elements: duty, breach, and causation. Since it is the defendant who is asserting the contributory negligence claim, he has the burden of proving its elements. If the defendant is successful in proving contributory negligence, the plaintiff's claim for damages is rejected – that is, the plaintiff gets nothing.

There are many ways in which a plaintiff can fail to take reasonable care. In the cases where the plaintiff is injured and the defendant has suffered no injury, the question of relevance is whether the plaintiff exercised reasonable care for his own safety. However, the determination of reasonable care may require a broader outlook than just the plaintiff's own safety. The plaintiff may have failed to take reasonable care not only for his own safety but for the safety of others, including the defendant, as well.

Not every failure to take reasonable care for one's own safety constitutes contributory negligence. In general, only those failures that contribute, with the defendant's negligence, in bringing about the plaintiff's harm constitute contributory negligence. This has been the common law rule at least since Greenland v. Chaplin, an English case decided in 1850. The defendant's steamboat negligently collided with the steamboat in which the plaintiff was a passenger. The collision caused the anchor of the steamboat carrying the plaintiff to fall on the plaintiff's leg, breaking it. The court rejected the defendant's argument that the plaintiff should not be allowed to recover for negligently placing himself so close to the anchor, holding that only negligence of the plaintiff that contributes to the cause of the accident can bar the plaintiff from recovery.