5. Negligence (Defences)

Question 1

How may plaintiff’s contributory negligence bar plaintiff’s recovery?

Answer 1

State does NOT adopt pure comparative negligence

• Plaintiff’s violation of statute
• Plaintiff’s contributory negligence as defence to Defendant’s violation of statute
• Plaintiff’s derivative negligence
• Plaintiff’s assumption of risk
• UNLESS Defendant’s intentional tort/wanton and wilful misconduct

Question 2

What is imputed contributory negligence?

Answer 2

Courts find P would be vicariously liable for TP’s negligence
- Courts may charge P with TP’s negligence

Question 3

Does imputed contributory negligence bar Plaintiff’s recovery?

Answer 3

NO

- Plaintiff can sue BOTH D + TP as joint tortfeasors (to extent that each is legal cause of harm)

Question 4

What are examples of imputed contributory negligence?

Answer 4

Employer-Employee

• Employee acted within scope of employment
• Employee’s negligence will be imputed to Employer (P)

Partners/Joint venturers

NOT Husband + Wife
- UNLESS derivative contributory negligence (negligent Spouse suing on behalf of other Spouse) => Bars P’s recovery

NOT Parent + Child
- UNLESS derivative contributory negligence (negligent Parent suing on behalf of Child) => Bars P’s recovery

NOT Automobile Owner + Driver

• UNLESS vicariously liable
• UNLESS Owner is passenger (ordinary contributory negligence)

Question 5

What is last clear chance?

Answer 5

Whoever had last clear chance to avoid accident BUT failed to do so => Liable for negligence
- Even if P was contributorily negligent => If D had last clear chance but failed to take it => D is liable

P’s helpless peril

1) P places himself in actual peril
2) P can NOT extricate himself
3) Either;
- D knew/should have known of P’s predicament => D is liable
- D could NOT have known of P’s predicament => P is liable

P’s inattentive peril

1) P places himself in actual peril
2) P can extricate himself (if attentive)
3) Either;
- D should have known of P’s predicament => Liable
- D could NOT have known of P’s predicament => P is liable

Question 6

What is required for Plaintiff’s assumption of risk to reduce/bar Plaintiff’s recovery?

Answer 6

1) Knowledge of risk

2) Voluntarily
- UNLESS NO alternative available to proceeding in face of risk

3) Expressly

3) Impliedly (average person would clearly appreciate risk)
- Sports
- D’s wanton/reckless conduct
- NOT common carriers/public utilities (they can NOT avoid liability)
- NOT statutorily protected classes
- NOT fraud/force/emergency
- NOT D’s intentional torts

Question 7

What is comparative negligence?

Answer 7

1) P made contributory negligence

2) Trier of fact weighs P’s negligence => Reduces P’s damages accordingly

Question 8

What is the rule for pure comparative negligence?

Answer 8

Court offsets D’s damages vs P’s liability (%) => NOT bar P’s recovery

• P is liable for 30% => P should recover 70%
• D is liable for 70% => D should recover 30%
• Court will offset D’s damages vs P’s liability (D’s liability > P’s liability) => P’s net recovery will be 40% (70% - 30%)

Question 9

What is the rule for partial comparative negligence?

Answer 9

Single Defendant

• If P/D’s liability < 50% => P recovers non-liable amount from D (vice versa)
• If P/D’s liability > 50% => Bars P/D’s recovery (vice versa)

Multiple Defendants (joint + several liability)

• P’s recovery is reduced by P’s liability
• P can recover ALL damages from EITHER defendant (each D is jointly and severally liable to one another)
• D can also recover from P + other D (if D suffered damages)
• If P’s liability > 50% => Bars P’s recovery

Question 10

What is the difference between pure and partial comparative negligence?

Answer 10

Pure

• NOT bar P’s recovery
• Presumed

Partial

• Bars P’s recovery
• NOT presumed

Question 11

What defences can/cannot be used towards comparative negligence?

Answer 11

P’s assumption of risk

• Express
• Implied (D did NOT breach his limited duty of care to P)
• D’s wanton/reckless conduct

NOT D’s last clear chance
- D’s last clear chance NOT prevent P’s recovery due to P’s negligence

NOT D’s intentional torts
- D’s intentional torts NOT prevent P’s recovery due to P’s negligence

Question 12

What is the difference between common law and modern law contributory negligence?

Answer 12

Common law
- Bars P’s recovery

Modern law
- NOT bar P’s recovery