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Alabama Tort Law
Copyright 2016, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

1-2 Alabama Tort Law 2.syn


Contributory Negligence and Assumption of Risk


Gregory S. Cusimano;; Michael L. Roberts

Chapter Summary


This chapter from Alabama Tort Law discusses the defenses of "contributory negligence" and "assumption of the risk" in tort actions. The chapter first explains contributory negligence, which is a defense that the negligence of the plaintiff proximately contributed to his injury. It discusses the types of contributory negligence: (a) voluntary assumption of the risk, which is the plaintiff's intentional and unreasonable exposure of himself to danger created by the defendant's negligence, of which danger the plaintiff knows or has reason to know; or (b) conduct, which, in respects other than those stated in clause (a), falls short of the standard to which the reasonable man should conform in order to protect himself from harm.

The chapter further examines the effect of contributory negligence, which is a defense only to simple negligence and not a defense to acts of wantonness or willfulness. It discusses the complete bar to recovery when a plaintiff's contributory negligence proximately contributed to his injury. The chapter also covers limitations on a plaintiff's duty to avoid injury, including those arising when a plaintiff is disabled, is a minor, or is involved in a sudden emergency.

Next, the chapter covers assumption of the risk, providing a variety of meanings and explaining it as a variety of contributory negligence. The chapter describes the elements required for a finding of assumption of the risk: the plaintiff (1) had knowledge of the existence of the dangerous condition; (2) had an appreciation of the danger under the surrounding circumstances and conditions; and (3) failed to exercise reasonable care by putting himself in the way of the known danger. The chapter notes that a plaintiff may be guilty of either contributory negligence or assumption of the risk, or both. In addition, the chapter discusses the continuance of the doctrine of contributory negligence in Alabama, rather than the adoption of some form of comparative negligence.

The chapter further reviews the doctrine of last clear chance or subsequent negligence, which modifies the harsh rule of contributory negligence and permits recovery under some circumstances even where a plaintiff's negligent act has placed him in a position of danger. Finally, the chapter considers the bar against recovery when a plaintiff's injuries were the knowing result of his knowing and intentional participation in a crime involving moral turpitude.

Alabama Tort Law (Matthew Bender) is the only truly comprehensive resource on tort law in Alabama. With expert discussion of proof requisites and defenses, it covers all the elements of each tort actionable under Alabama law. It provides the information necessary to determine if there is a case and what is needed to prove or defend it. Alabama Tort Law not only provides up-to-date coverage of relevant case law and analysis, it also includes comprehensive appendices with practical material, including checklists and sample complaints for frequently encountered topics.


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For more information on negligence generally, see Chapter 1, Negligence; Chapter 3, Wantonness and Willfulness; and Chapter 36, Joint Tortfeasors.

For more information on contributory negligence and assumption of the risk in particular situations, see Chapter 8, Premises Liability; and Chapter 19, Products Liability.


See Personal Injury: Actions, Defenses, Damages (Matthew Bender) for the largest and most comprehensive case law compendium in legal literature, with encyclopedic treatment of the personal injury law of every American jurisdiction and coverage of theories of recovery, elements of causes of action, necessary allegations, defenses, and damages.

See Personal Injury Defense Techniques (Matthew Bender) for a discussion of a wide range of the substantive and practical legal problems faced by defense counsel, along with suggestions for the best ways to remedy them, with coverage of such topics as insurance defense, liquor liability, medical malpractice, premises liability, products liability, toxic torts, and damages.

See Damages in Tort Actions (Matthew Bender) for in-depth legal and policy analyses of compensatory and punitive damages in personal injury, wrongful death, and property damage cases, plus case annotations to all jurisdictions and examples of illustrative awards and settlements.

See Alabama Civil Procedure (Matthew Bender) for coverage of the Alabama Rules of Civil Procedure, rules from other sources, relevant statutes, comparisons with the Federal Rules of Civil Procedure, and case law that bears on civil trial practice. It also includes a table of cases and a table of statutes, plus dozens of sample forms.
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