Defenses to Accidental Tort Claims


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.

© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at and

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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