defenses

Question 1

what is the general effect of defenses based on P’s conduct?

Answer 1

they either defeat or reduce P’s recovery even though a prima facie case of liability exists for D

Question 2

what are the three main types of defenses based on P’s conduct?

Answer 2

contributory negligence, comparative negligence, assumption of the risk

Question 3

define contributory negligence

Answer 3

P’s failure to use due care of their own safety, which is an actual/proximate cause of P’s injuries

Question 4

why was contrib negligence a complete bar to all recovery by D?

Answer 4

P must act with due care to recover from D

Question 5

why is contrib negligence viewed as unfair?

Answer 5

all or nothing - no liability imposed on a negligent D

Question 6

what’s the first case that addressed contributory negligence?

Answer 6

Butterfield/Forester - hit pole while riding horse too fast

Question 7

what is the doctrine that supplies an exception to contributory negligence?

Answer 7

last clear chance - D has last chance in chain of events to avoid accident

Question 8

what has to be proven to invoke the “last clear chance” doctrine?

Answer 8

D has to know or should have known of P’s danger in time to take protective action

Question 9

what is the benefit of comparative negligence over contrib. negligence?

Answer 9

mitigates “all or nothing” of contrib - still penalizes P whose lack of care contributed

Question 10

what are the two types of comparative negligence?

Answer 10

pure and modified

Question 11

how does “pure” comparative negligence work?

Answer 11

P may recover regardless of the degree of his contrib. negligence, but jury reduces award in proportion to P’s percentage of responsibility

Question 12

how does “modified” comparative negligence work?

Answer 12

a party whose % of negligence reaches some specified level is totally barred from recovery

Question 13

what case dealt with the helmet defense?

Answer 13

Stehlik/Rhoads - helmet defense and seat belt defenses are a limitation on damages, not a bar to recovery

Question 14

describe the doctrine of avoidance consequences

Answer 14

P can’t recover for losses that could have been avoided by reasonable precautions taken after the accident (looting)

Question 15

define express assumption of risk

Answer 15

parties expressly agreed in advance (writing/orally) that P will relieve D of legal duty toward P

Question 16

what was the case that dealt with express assumption of risk?

Answer 16

Wolf v Ford - exculpatory clauses

Question 17

when are exculpatory clauses related to express assumption of risk NOT enforced?

Answer 17

reckless negligence, intentional harms, disadvantage in bargaining power, transactions affecting public interest

Question 18

define implied assumption of risk

Answer 18

P voluntarily encouters a known risk and decides to proceed anyway

Question 19

what is primary implied assumption of risk?

Answer 19

P impliedly assumes those risks that are inherent in a particular activity (Flopper)

Question 20

what s secondary implied assumption of risk?

Answer 20

when P knowingly encouters a risk created by D’s negligence