Defenses

Question 1

• Contributory Negligence (Old Common Law)

Answer 1

• Any Degree of Carelessness on P’s part = Bar to recovery

- Exception: Last Clear Chance Doctrine

Question 2

• Exception to Contributory Negligence (Last Clear Chance Rule) :

Answer 2

• If Defendant had the last clear chance to avoid causing harm, only then would the P’s contributory negligence be excused.

Question 3

Pure Comparative Fault:

Answer 3

• Plaintiff’s carelessness works as a discount off of the D’s liability.
• P can recover damages equivalent to D’s Fault
• Total Damages = $100
  
  • P’s fault = 10%
  • D’s Fault = 90%
    = P Recovers $90.00

Question 4

Modified Comparative Fault:

Answer 4

P can recover percentage of damages until reaching a specified cap; if cap reached, no recovery is allowed.
e.g. Total Damages = $100
State allows recovery unless P’s fault is 50% or more.
P’s Fault = 25% –> P can recover $75
P’s fault = 55% –> P recovers $0.00

Question 5

Assumption of Risk

Answer 5

Elements that must be proved (POE)

1) Know of the particular risk (actual knowledge / Subjective Knowledge)
2) voluntarily (plaintiff’s deliberative process = “did they think about the risk, and expose themselves to the risk”)
3) assume the particular risk

Question 6

Express Assumption of the Risk (Contract or Spoken Waiver / BAR TO RECOVERY)

Answer 6

• Doctrine that allows people to wave their right to sue.

Rule:

1) knowingly and voluntarily assume that particular risk
2) manifest that waver in an unambiguous manner.
- Complete defense to Negligence = Bar to Recovery

Question 7

RULE = Four factors for Determining whether an exculpatory agreement is valid:

Answer 7

1) the Existence of a duty to the public (involve a social interest)
2) the nature of the service performed (needed by all /most people)
3) whether the contract was fairly entered into.
4) whether the intention of the parties is expressed in clear and unambiguous language.

Question 8

Jones v. Dressel (Colo. 1981) – Skydiver Sues for Crash
Duty to public - not a factor in Jones V. Dressel
Factors that determine whether Contracts involving a public interest are enforceable:
IF,

Answer 8

• concerns a business suitable for public regulation
• Party performs a service of great importance to the public, which is often a practical necessity
• Party willing to perform service for any member of public
• party has a decisive advantage of bargaining strength
• party confronts the public with a standard adhesion contract and makes no provision whereby purchaser may pay additional fees and obtain protection from negligence.
  -Person or property of the purchaser is placed in the control of the seller, subject to risk of carelessness
  No single factor is determinative.

Question 9

Dalury v. S-K-I, LTD. (Exculpatory agreement = VOID)

- SOCIAL INTEREST AFFECTED (DUTY TO PUBLIC)

Answer 9

“Determinations of what constitutes a public interest is must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.”

• Substantial number of people involved = constitutes a valid public interest.
• Public policy interest = Premises liability
• Duty to maintain safe premises / avoid foreseeable dangers

Question 10

Implied Assumption of the Risk (forfeit your right to sue / USUALLY COMPARATIVE FAULT)

Answer 10

• because of his/her behavior, Plaintiff has forfeited their right to sue)

Behavior must indicate (POE):

1) Know of the particular risk (actual knowledge / Subjective Knowledge)
2) voluntarily (plaintiff’s deliberative process = “did they think about the risk, and expose themselves to the risk”)
3) assume the particular risk