Defenses

Question 1

contributory negligence

Answer 1

person whose negligence (failure to exercise reasonable care) contributes to own injury cannot recover from defendant whole negligence also contributed to the injury
- has the same elements as negligence, each must be proven by the defendant

Question 2

rule of 7’s

Answer 2

under 7 = no cause of action as a matter of law
ages 7- 14 = presumed incapable of contributory negligence
ages 14 - 17 = presumes capable of contributory negligence

Question 3

last clear chance doctrine

Answer 3

if D has last opportunity to avoid injury, he must do so, whether or not P’s conduct was negligent. P’s defense to D’s affirmative defense of contributory negligence and has the burden of proving last clear chance.

Question 4

last clear chance doctrine elements

Answer 4

1. plaintiff places himself in a position of peril and could not escape
2. D knew or should have known the plaintiff was in harm’s way
3. D had time and means to avoid injury to the plaintiff and
4. D failed or refused to use every reasonable means he could to avoid injury to P
5. P was injured as a result of D’s failure

Question 5

comparative negligence

Answer 5

allows the P to recover even if their negligence contributed to their injury so long as their percentage of fault falls under a certain thresh hold

Question 6

modified 50/50 comparative negligence

Answer 6

P can recover for damages so long as P’s negligence is not greater than that of the D 50/50 plaintiff can still recover (P negligence can be the same as D)

Question 7

modified 49/51 comparative negligence

Answer 7

P can recover so long as P’s negligence is not equal to or greater than the D’s negligence (must be less than the D’s negligence)

Question 8

pure comparative negligence

Answer 8

P’s damages are reduced by whatever percentage of liability P is responsible for. P recovers only to the extent that they were not negligent

Question 9

assumption of the risk

Answer 9

if D can prove that P assumed the risk, then P cannot recover.
- negates the element of duty
- if the P expressly or impliedly consents to confron the harm from a particular risk created by the D, the P is held to have assumed that risk and thus is barred from any recovery for negligence