Damages and Defenses to Negligence

Question 1

contributory negligence

Answer 1

same standard of care as for ordinary negligence - rescuer will not be deemed contributorily negligent without taking into account the emergency situation

Question 3

contributory negligence as defense to ds violation of statute

Answer 3

contributory negligence is a defense to negligence proved by the ds violation of an applicable statute unless the statute was designed to protect this class of ps from their incapacity and lack of judgment (example - child injured after darting into a street in a school zone and getting hit by speeding car of defendant)

Question 4

is contributory negligence a defense to intentional tort?

Answer 4

no - not a defense to willful and wanton misconduct or intentional tortious conduct

Question 5

effect of contributory negligence at common law

Answer 5

barred ps right to recovery

Question 6

last clear chance exception to contributory negligence

Answer 6

doctrine permits p to recover despite contributory negligence
helpless peril - d will be liable if knew or shoul dhave known of ps predicament
inattentive peril - d must have actually known of ps predicament
-for last clear chance doctrine to apply, the d must have been able but failed to avoid harming the p at the time of the accident, if the ds only negligence occurred earlier the doctrine wont apply

Question 7

imputed contributory negligence

Answer 7

as a general rule the contributory negligence of a 3p will be imputed to a p only when the relationship between the third party and the p is such that a court could find that the p is vicariously liable for the 3Ps negligence
example - employee-employer, partner and joint venture relationships
not iputed in spouses, parent/child, automobile owner and driver

Question 8

comparative negligence effect on other doctrines

Answer 8

if last clear chance - no effect
if assumption of risk - express assumptino is a clear defense; implied assumption is aalyzed as either 1) a limitation on the duty owed to the p or more commonly 2) contributory negligence
if wanton and willful condut - the ps negligence will be taken into account in most states even tho the ds conduct was wanton and willful or reckless (however ps negligence is still no defense to intentional tortious conduct by d)