Comparative Fault & Others' Acts — Torts

A grocery store hires an outside cleaning company to mop its floors every night. One morning the crew has left a section of tile wet and unmarked, and a shopper slips, falls, and fractures her wrist. The store never touched a mop. It picked a well-reviewed, fully insured contractor. Is the store liable?

Yes. And by the end of this episode you will also know what she actually collects. That is a completely different question, and one where the answer can be nothing at all. This topic is two questions. Who pays for someone else's wrong. And how much the plaintiff's own carelessness takes away.

Here is the route. Part one, liability for other people's acts. Vicarious liability in one breath, then the two places the exam actually works, independent contractors and parents. Part two, the plaintiff's own fault. Contributory negligence, comparative negligence, and the math. Part three, assumption of risk, which is three different doctrines wearing one name.

Start with the default. You answer for your own wrongful conduct, not anyone else's. Vicarious liability is the exception. It makes one person responsible for a tort actually committed by another, purely because of the relationship between them. The defendant did nothing careless. Liability is imputed.

The classic is respondeat superior. Let the superior answer. An employer is vicariously liable for torts an employee commits within the scope of employment. A minor deviation, a detour, stays inside. A major personal errand, a frolic, falls outside. Intentional torts are usually outside too, unless force is part of the job, the way it is for a bouncer.

The rule flips for independent contractors. Hire one, and you are generally not vicariously liable for their torts. An employer controls how the work is done. A hirer bargains only for a result and leaves the means and methods to the contractor. No control over the manner of the work, no respondeat superior.

That default has a big exception, and it is the one on your outline. Nondelegable duties. Some responsibilities are so important the law will not let you shift them onto someone else. Hire out the physical work, and you stay liable if the contractor does it negligently.

Say it as a slogan. Hiring out the task does not hire out the responsibility. And note what this is not. It is not carelessness in choosing the contractor. That is your own direct negligence.

Which duties are nondelegable? Five families. Inherently or abnormally dangerous activities, like blasting. A business's duty to keep its premises reasonably safe for invitees. Duties to keep instrumentalities safe for the public, an elevator, a site by a public sidewalk. Duties imposed by statute, ordinance, franchise or contract. And a common carrier's duty to passengers, plus in many states a landlord's duty for common areas.

Back to our shopper. The store hired out the mopping, but a business's duty to keep its premises safe for customers is nondelegable. The contractor's carelessness is charged to the store as if it were the store's own. And choosing a well-reviewed firm is no defense. Careful selection defeats a negligent-hiring claim. It does nothing here.

Try one. A developer hires a licensed blasting contractor to clear rock, specifies only a level lot, and leaves every blasting decision to the specialist. The contractor sets the charges carelessly and debris injures a neighbor. Independent contractor, so the developer walks? No. Blasting is inherently dangerous, and that duty is nondelegable.

Now parents. Students assume a parent automatically answers for whatever a child breaks. Not so. At common law a parent is not vicariously liable for a child's tort merely because of the relationship. Start from no, and hunt for an exception.

Test it. A ten-year-old rides her bicycle into an elderly pedestrian, who breaks his hip. She had never ridden carelessly before, and her parents had no reason to think she would. Are the parents liable? No. She may be liable herself, held to the standard of a reasonable child of like age, intelligence and experience. The relationship alone reaches no one.

But five routes do reach a parent. First, the parent's own negligent supervision. If the parent knew, or should have known, of the child's specific dangerous tendency and failed to use reasonable control. Parents who know their twelve-year-old throws rocks at cars from an overpass are liable for their own negligence.

Second, negligent entrustment. A parent who hands a child a dangerous instrumentality the child cannot safely handle, a car, a firearm, power tools, is directly liable for the entrusting. Think of a loaded handgun left in an unlocked drawer for an impulsive fourteen-year-old.

Third, agency. A child running an errand at the parent's direction triggers ordinary respondeat superior. Fourth, the family purpose doctrine. In many states, a car owner who lets a family member drive it for family purposes answers for that driver's negligence.

Fifth, parental responsibility statutes. Nearly every state has one making parents liable for the willful or malicious torts of their minor children, usually vandalism. Two limits, and the exam lives on them. The liability is capped, and it usually does not reach ordinary negligence.

So read the words. The Columbia Parental Responsibility Act, § 12, makes a parent liable for a minor's willful or malicious act, up to $10,000 per act. It also says it does not reach merely negligent conduct. Two teenagers spray-paint a fence, causing $30,000 in damage. Each set of parents is liable, and each is capped at $10,000.

Now change one fact. Say a teen accidentally knocks over a lantern and does the same damage. That last sentence takes the parents straight out of it. The statute reaches willful acts, not negligence, so the neighbor needs a common-law route instead.

One bridge before we flip the camera. A relationship can also charge another's negligence to a plaintiff and shrink the recovery. Courts do that only where a genuine vicarious-liability relationship exists. Employer and employee. Principal and agent. Not one spouse to the other, not a parent to a child, not a driver to a passenger.

Part two. The plaintiff's own fault. Under traditional contributory negligence, a plaintiff whose own negligence contributed to the injury at all recovers nothing. Even 1% of the fault is a complete bar. A pedestrian who crosses against the signal, 95% the driver's fault and 5% hers, recovers zero.

Courts softened that with escape valves, and the one you need is last clear chance. A contributorily negligent plaintiff still recovers if the defendant had the last real opportunity to avoid the harm and failed to use it. Think of an engineer who sees a stalled car far down a straight track and brakes too late.

The rule was thought so unfair that almost every state abandoned it. Today only four states plus the District of Columbia still follow it, and even those are carving out exceptions.

Everywhere else the all-or-nothing bar is gone. The jury assigns each party a percentage, and the plaintiff's damages are reduced by their share. The only question left is whether there is a ceiling on how much fault a plaintiff can carry.

That splits comparative negligence into two families. Pure comparative reduces damages by the plaintiff's percentage with no ceiling at all. A plaintiff 90% at fault still collects 10% of the damages. Modified comparative sets a threshold, and there are two versions, differing by a single percentage point.

Version one is the not as great as rule, the 50% bar. The plaintiff recovers only if her fault is less than the defendant's, so 49% or less. Version two is the not greater than rule, the 51% bar. She recovers if her fault is not greater, so 50% or less.

Now the math, because these are quietly math problems. Damages of $100,000, and the jury puts 30% of the fault on the plaintiff. In every comparative system, pure or modified, she recovers $70,000. Below the threshold they behave identically.

They diverge as her fault climbs. At 60% on the same $100,000, she recovers $40,000 in a pure state and nothing in either modified state. And the two modified rules differ in exactly one place. The 50/50 tie.

So here is our shopper again, with one fact changed. Suppose the crew did put out a warning cone and she walked past it. The jury sets her damages at $80,000 and splits the fault exactly evenly, 50% each. In a not as great as state, what does she get? Nothing. Her fault has to be less than the store's, and 50% is not less than 50%.

Move her to a not greater than state and the same even split pays her half. A cyclist exactly 50% at fault, damages of $60,000, recovers $30,000. One percentage point, opposite outcomes.

One wrinkle. With several defendants, states split on how to apply the threshold. Some compare the plaintiff against the combined fault of all of them. A plaintiff at 40%, facing defendants at 35% and 25%, is under their combined 60% and recovers. Others compare her against each defendant alone, where her 40% beats both, and she is barred.

Part three. Assumption of risk, where the plaintiff in some sense chose to face the danger. One phrase, three very different doctrines, and blurring them is the number-one mistake here. Express, an actual agreement. Primary implied, really a no-duty rule. Secondary implied, which folds into comparative fault.

Express first. The plaintiff agrees in advance, almost always in a signed release, to relieve the defendant of a duty and shoulder the risk herself. Because it rests on an actual agreement, a valid express waiver is a complete bar, not merged into comparative fault.

So a climber signs a clear release covering injury from the climbing walls, including the gym's ordinary negligence. A staff member clips her rope wrong and she falls. The waiver bars the claim outright.

But courts police these clauses hard. Four checks. Is the language clear, with ambiguities read against the drafter? Is the risk within the scope the release describes? Does it try to waive gross negligence, recklessness or intentional harm, which the majority rule voids? Does it violate public policy?

Watch each one fail. A zip-line operator who knows an anchor bolt is cracked, hides it, and keeps running tours is grossly negligent. No wording saves it. A release a hospital demands as the price of urgent surgery dies on public policy. Essential service. And a gym release covering exercise equipment does not reach a fall in the parking lot. Wrong scope.

Two more limits. Waivers signed by or on behalf of minors are often unenforceable, and a clause that violates a statute is void.

Primary implied assumption of risk is not really a defense. It says the defendant owed no duty, or only a limited one, as to risks inherent in an activity the plaintiff chose to join. A spectator accepts the ordinary risk of a foul ball. A skier accepts moguls and changing snow.

Because the defendant breached no duty, there is no negligence to compare. So primary assumption of risk is a complete bar, and it survives the switch to comparative fault. The firefighter's rule is the well-known application.

The key limit is the word inherent. A ballpark that negligently tore out the netting behind home plate added a risk. A resort that parks a snow-grooming machine around a blind curve with no flags added another. Neither is inherent, and primary assumption of risk will not save them.

Secondary implied assumption of risk is the true overlap with the plaintiff's own fault. The defendant did breach a duty and create a risk, and the plaintiff, knowing about it and appreciating how bad it is, chose to face it anyway. Knowledge, appreciation, voluntary exposure.

Under the old law that was another complete bar. Under modern law and the Restatement (Third) of Torts, it is not a separate defense. An unreasonable decision to face a known risk is just comparative fault, and it reduces the recovery rather than barring it.

And if the choice was actually reasonable, many courts treat it as no fault at all. A tenant who dashes through smoke to carry a trapped toddler out has her recovery reduced by nothing. So in a comparative-fault state, she knew it was risky is not the end of the analysis. Run it through the percentage.

A word on authorities. This episode named no cases, and that was deliberate. The exam gives you a fact pattern and asks what result the rule produces. It will not ask for case names. The modern position here comes from the Restatement (Third) of Torts. And where a statute or a release is in play, the exam will usually hand you the text to apply.

If you keep only three things, keep these. Nondelegable duty, because it is what makes a hirer answer for an independent contractor. The 50/50 line, because one percentage point decides the case. And the three assumption-of-risk boxes, because express and primary bar the claim while secondary only shrinks it.

Now the traps, straight from the examiners' favorites. One. Do not confuse direct and vicarious liability. Negligent supervision, negligent entrustment and negligent hiring are the defendant's own negligence. They need no special-relationship rule, and they work where vicarious liability does not.

Two. Do not assume parents are automatically liable for a child's negligence. Start from no. Three. Do not forget the independent-contractor default, which holds unless a nondelegable-duty or inherently-dangerous exception applies. Four. A parental-responsibility statute usually reaches only willful acts, and it is capped. Read it.

Five, and this is the big one. In a comparative-fault state, secondary implied assumption of risk does not bar the claim. It reduces damages. Answer choices calling it a total defense are usually wrong. Six. Primary, no-duty assumption of risk does still bar the claim, but only for risks inherent in the activity.

Seven. An express waiver is strong, not bulletproof. Check for gross negligence, an essential or public service, and adhesion before you treat it as a clean win.

Time for the quick check, and this one comes straight from the BARGO question bank. A tenant repeatedly asks her landlord to fix a stair railing he negligently leaves broken. One night she uses the stairs anyway rather than wait, knowing the railing is broken and the stairwell is dark. She loses her balance where the railing is missing, and is hurt.

She sues for negligent maintenance. The jurisdiction has adopted comparative negligence and follows the modern Restatement approach. How does her knowing use of the broken stairs affect her claim? Option one. It bars the claim entirely as an implied assumption of risk. Option two. It bars the claim only if using the stairs was unreasonable. Option three. It reduces her recovery in proportion to her share of the fault. Pause here if you want a moment.

The answer is option three. Secondary implied assumption of risk is not a separate complete defense. It folds into comparative fault and reduces her recovery by her percentage. Her knowing use of the stairs cuts the damages down. It does not kill the claim.

Option one states the old common-law rule that comparative-fault jurisdictions abandoned, and it is the single most tested trap here. Option two is closer but still wrong. An unreasonable choice to face a known risk is comparative fault that reduces recovery, not a total bar. There are thirty-plus more questions on this topic alone, each option explained like that.

Five things to take away. One. Vicarious liability is about the relationship, not your own carelessness, and the default for an independent contractor is no liability, unless the duty is nondelegable. Two. A parent is not automatically liable for a child's tort. Start from no and find the route.

Three. Contributory negligence is a small minority rule where 1% bars everything. Everywhere else you subtract the plaintiff's percentage, and in a modified state you check the threshold, watching the 50/50 line. Four. Only express and primary assumption of risk bar the claim.

Five. Secondary implied assumption of risk folds into comparative fault, so it reduces. And if the plaintiff's choice to face the risk was reasonable, it reduces nothing at all.

Which is why a store that never touched a mop pays for a wet floor, and a shopper who walked past the cone can still walk out with nothing. Next time, Strict Liability.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.