Affirmative Defenses to Negligence Flashcards
1) Contributory negligence
a) This is an old common law doctrine that completely bars the plaintiff’s right to recover if he was negligent unless the defendant had the last clear chance to avoid the injury.
Bar Exam Tip: do not apply this on the MBE unless the question specifically tells you to!
i) Ex.: Defendant’s store floor is slippery and defendant negligently fails to warn customers of the danger. Plaintiff is texting while walking and not looking where she is going. Plaintiff slips and falls on the floor.
The jury finds she was 10% at fault and that the defendant was 90% at fault. Normally, she could not recover in a contributory negligence jurisdiction since she “contributed” to her harm. However, if the
defendant saw the plaintiff not paying attention and knew or should have known that the plaintiff was likely to fall but does not act reasonably in preventing the injury, then the defendant is said to have had
the “last clear chance” to avoid the harm and the plaintiff may recover for
her injuries.
2) Assumption of risk
a) A plaintiff may be denied recovery if she “assumed the risk” of the defendant’s negligence. Defendant has to show that plaintiff both knew of the risk and voluntarily assumed it. (However, in certain situations, the “assumption of risk” doctrine will not bar recovery, e.g., where plaintiff has no choice, when it is an emergency, or when public policy forbids it.)
i) Express waivers saying one waives liability for negligence (will not sue) (e.g., in sports) generally are enforceable. However, they are not enforceable if they are against public policy (e.g., an agreement to not sue for medical malpractice prior to receiving treatment at a hospital would not be enforced).
3) Comparative negligence—majority law
a) The judge or jury weighs the plaintiff’s negligence against the defendant’s. Percentages of fault are assigned to all of the parties involved.
i) Pure comparative negligence: the plaintiff can recover no matter how negligent he is.
Bar Exam Tip: this is the default on the MBE unless otherwise stated.
(1) Ex.: If the plaintiff is 85% at fault and the defendant is 15% at fault for the plaintiff’s injuries, the plaintiff will recover 15% of his damages from the defendant.
ii) Partial (modified) comparative negligence: if the plaintiff was more at fault than the defendant (or in some states, if they were equally at fault), the plaintiff cannot recover.
(1) Ex.: A plaintiff who is less than 50% at fault will recover damages from the defendant. If the plaintiff is greater than 50% at fault, plaintiff cannot recover.
