Affirmative Defenses

Question 1

How is contributory negligence defined?

Answer 1

Definition: “Conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause . . . in bringing about the plaintiff’s harm.”

+ Plaintiff owes duty to self

Question 2

True or false: Most courts have done away with contributory negligence.

Answer 2

True.

Question 3

True or false: To prove contributory negligence, only but for causation needs to be evidenced.

Answer 3

False. Plaintiff’s conduct must be an actual cause of plaintiff’s harm AND must also be proximate cause

Question 4

Does a P or D have the burden of showing contributory negligence?

Answer 4

D. It’s an affirmative defense: “I did it, but they played a part in it, too.”

Question 5

When is contributory negligence not a successful affirmative defense?

Answer 5

Not appropriate when D’s misconduct more serious than P’s negligence (recklessness or willful misconduct)

Question 6

How do statutes affect the contributory negligence defense? Give an example.

Answer 6

Statutes may be passed to protect some group against its ability to protect itself, so may bar a defense of contributory negligence

Ex: statute that bus drivers must instruct students in crossing the street

Question 7

How does recklessness affect contributory negligence?

Answer 7

Recklessness shifts to comparative fault/comparative recklessness in certain situations. Serves as a limiting principle.

Question 8

What is the last chance doctrine? Does it apply to p and d’s?

Answer 8

Last Clear Chance Doctrine: For P’s only, not D’s in negligence cases

1) D claims contributory negligence
2) P responds with last clear chance
3) Even if P is negligent, D had “last clear chance” to avoid the accident but failed to take it → Defendant’s negligent act is the final decisive cause of the accident

Question 9

What happens if D’s negligent act occurred after P’s contributory negligence?

Answer 9

Instructs the court to ignore the plaintiff’s contributory negligence if the defendant’s negligence occurred after the plaintiff’s contributory negligence.

Question 10

When do courts reject the last clear chance doctrine?

Answer 10

Most jurisdictions reject the last clear chance doctrine when replacing contributory negligence with comparative negligence.

Question 11

If a D can avoid an accident, can he claim an affirmative defense with last clear chance?

Answer 11

No. If D can avoid the accident, they cannot invoke contributory negligence.

Question 12

Explain why contributory negligence is imputed from a public policy perspective. Give some examples.

Answer 12

Will not impute contributory negligence on non-negligent party for others negligence.

Ex: passengers on bus harmed by another driver’s negligence and bus driver’s contributory negligence
Ex: child injured by another’s negligence, and parent negligent as well by not watching child

+ Most significant example is respondeat superior

Question 13

What are derivative claims in contributory negligence?

Answer 13

Derivative → relationship to the negligent act/party

+ Impute negligence for derivative claims
+ Loss of consortium, bystander emotional distress, wrongful death

Question 14

Explain how subjectivity comes into play with contributory negligence

Answer 14

+ Jurisdictions allow more subjectivity for P’s to undermine contributory negligence

+ Juries tend to be sympathetic to P’s, even when contributory negligence is found

+ Will allow for P’s recovery even if contributory negligence is found as QOL

Question 15

What is comparative negligence? How does it affect a negligence claim?

Answer 15

Negligent plaintiff’s recovery depends on how serious her negligence was in comparison to the defendant’s.

If proven, REDUCES damages but does not bar it (thus, not a complete defense)

Question 16

Who determines the % of comparative negligence?

Answer 16

Jury sets % of fault caused by plaintiff’s and defendant’s negligence

Question 17

What are the three jurisdictions for comparative negligence?

Answer 17

1) Pure Comparative Negligence
2) Greater Fault Bar
3) Equal Fault Bar

4) PLUS Classic Contributory negligence, which bars a P’s ability to collect damages

Question 18

What % of fault bars a P’s ability to recover in comparative negligence cases?

Answer 18

Contributory Negligence; 1%= complete bar to recovery
Pure: % allocation
Equal Fault: 50% allocation = complete bar to recovery
Greater Fault: 51% allocation = complete bar to recovery

Question 19

What is a jurisdiction examining to determine comparative fault/negligence/responsibility?

Answer 19

1) Comparative negligence jurisdiction = negligence, recklessness
2) Comparative fault jurisdiction = negligence, recklessness, intentional torts
3) Comparative responsibility jurisdiction = negligence, recklessness, intentional torts, and strict liability → (most states moving towards this)

Question 20

Compare between pure and modified comparative fault systems

Answer 20

Courts usually choose Pure
Legislatures usually adopt modified
Modified Versions: If multiple defendants, their negligence will be aggregated

Question 21

Is assumption of risk an objective or subjective test?

Answer 21

Subjective

Question 22

What are the three basic elements to assumption of risk?

Answer 22

The plaintiff must (1) know a particular risk and

(2) voluntarily
(3) assume it.

Question 23

What are the two classifications for assumption of risk?

Answer 23

Express Assumption of Risk

Implied Assumption of Risk

Question 24

What is an express assumption of risk?

Answer 24

Contracts exculpatory clause waiving negligence

Question 25

What is an implied assumption of risk?

Answer 25

1) Plaintiff must have actual knowledge of the specific risks of the harm
2) Plaintiff must appreciate the magnitude of the danger; AND
3) Plaintiff must freely and voluntarily encounter the risk

Question 26

How do courts deal with assumption of risk and spectators or amateur players at sporting events?

Answer 26

+ Usually dealt with by statute
+ Assume risks associated with the game (i.e. being tackled in football)
+ Do not assume risks of someone exceeding the bounds of the game (i.e. being punched in the face after a play)

Question 27

True or false: most states employ comparative fault to apportion damages for enhanced harm resulting from failure to mitigate.

Answer 27

True. But it can be complicated.

Ex: D’s conduct causes $150K damages to P
Jury appoints 20% to P and 80% to D, but then P’s failure to mitigate increases the amount of damages by $50K.

With enhanced harm, P and D are both at 50/50.

Question 28

Do express agreements waiving negligence avoid D’s liability?

Answer 28

Not necessarily.

What did the waiver say –> did it mention negligence, did it address only inherent risk?

Did D cause the risk?

What would public policy say –> who’s in control, can P’s modify the terms, is it an essential service to the public, is D making a profit?

Question 29

What are the two applied assumptions of risk?

Answer 29

1) Primary - P knew what they were getting into. Unless D’s activities are outside of the inherent risk, D is not culpable (see secondary)
2) Secondary - P encounters risk due to D’s negligence.

Question 30

True or false: Primary and Secondary Implied negligence are true affirmative defenses.

Answer 30

False. Only Secondary.

Primary: Not a true affirmative defense. No unreasonable conduct, no breach.
Secondary: True affirmative defense b/c asserted only after P establishes PF case of negligence.

Question 31

What’s the difference between assumption of risk and contributory negligence?

Answer 31

Contributory negligence –> unreasonable conduct. Objective test.

Assumption of risk –> subjective test, looking at parties’ credibility

Question 32

What are the three jurisdictions that you might come across when dealing with assumption of risk v. contributory negligence?

Answer 32

1) Merging Assumption of Risk and Comparative Negligence → depends on P’s negligence %
2) Complete and separate defense → complete bar to recovery
3) Abolish Assumption of risk