Defenses

Question 1

What is contributory negligence?

Answer 1

Where there is still negligence on the part of the defendant, but the plaintiff also behaved negligently which led the the injury.

Question 2

What are the four ways that a court can take a plaintiff’s behavior into account?

Answer 2

1. Completely bar the plaintiff’s negligence (Butterfield)
2. Completely ignore the plaintiff’s culpable conduct
3. Adopt the first two rule and create exceptions (Danes)
4. Compare the two parties fault and reduce the plaintiff’s damages according to their contribution. (McIntyre)

Question 3

Pure form comparative fault

Answer 3

Where a plaintiff’s damages are reduced in proportion to the percentage of negligence attributed by his actions. Does not matter how much negligence he contributed.

Question 4

Modified form comparative fault (2 kinds)

Answer 4

1. The plaintiff’s recovery will be reduced by the percentage of contributory negligence as long as it does not exceed to the defendant’s negligence. (cannot exceed 50%)
2. Plaintiff has to have produced less the the defendant’s negligence contribution to recover. (Less then 49%) Georgia follows this approach.

Question 5

Slight less (comparative fault)

Answer 5

So long as the plaintiff’s negligence is “slight” in comparison to the defendant’s, the plaintiff can recover. Only South Dakota follows this.

Question 6

Doctrine of last clear chance

Answer 6

If the defendant had the opportunity to avoid the accident AFTER the opportunity to avoid it was no longer available to the plaintiff, then the defendant is the one who should bear the loss completely.

Question 7

Policy for last clear chance

Answer 7

The party who has the last chance to make the injury not occur should be held culpable because it is worse to have been negligent AND have had the chance of avoiding injury through stopping the negligent act.

Question 8

Helpless plaintiff

Answer 8

Restatement §479: Has to show that the defendant knew or had reason to know plaintiff was in peril

Question 9

Inattentive plaintiff

Answer 9

Restatement §480: Has to show that defendant was in ACTUAL knowledge of the peril.

Question 10

Two kinds of assumption of risk

Answer 10

Express and implied

Question 11

Express assumption of risk

Answer 11

Seigneur case where the woman signed the contract with the health club and it was seen as a clear case in which she assumed the responsibility of any resulting injury. (Was the risk that the plaintiff suffered with the scope of the agreement made?)

Question 12

Exceptions to express assumption of risk

Answer 12

If the actual negligent conduct was protected by the contract. If the bargaining power of the parties was grossly unequal.

Question 13

Factors for public interest exception

Answer 13

1. The business is a type thought suitable for public regulation.
2. The service performed was of great importance or practical necessity.
3. The party held itself out to perform services for ANYONE who sought it.
4. The party invoking the exception had a higher bargaining position.
5. The contract entered into was a contract of adhesion.
6. The person or property placed under control is subject to risks of carelessness by the owner or it’s agent.

Question 14

Which businesses often have an exception for assumption of risk?

Answer 14

Common carriers (i.e. schools), Public utilities, and medical services.

Question 15

Implied assumption of risk

Answer 15

Requires actual knowledge of the particular risk, appreciation of its magnitude, and a voluntary encounter of the risk (something other then defendant’s conduct). This is a subjective standard because it is based on the plaintiff’s knowledge.

Question 16

Statute of limitation (in it’s purest form)

Answer 16

Limits the time in which a case can be brought. If the time is expired, the case is barred from being tried.

Question 17

When does a statute of limitations start to run? Majority rule

Answer 17

When the cause of action arose.

Question 18

Policy for statute of limitations.

Answer 18

Avoid “stale” (old) claims, grants stability in certainty of legal obligations, deters people from sleeping on their rights.

Question 19

Discovery Doctrine

Answer 19

The statute of limitations does not begin to run until the injury is discovered.

Question 20

Exception to discovery doctrine.

Answer 20

Statute of limitations may run if the injury is latent and the cause of action was not knowable or if there was inquiry notice (reasonable person would have been put on notice of problem).

Question 21

Tolling

Answer 21

A pause in the statute of limitations. Allowed for mental incapacity, minors, and where there was fraud or concealed identity.

Question 22

Statutes of repose

Answer 22

Limits the time of action within which a cause can ARISE. Similar to a statute of limitation, but usually tolling can not be invoked in repose.

Question 23

Immunities

Answer 23

When a defendant is negligent, but not liable because of a special privilege which protects them.

Question 24

Interspousal immunity

Answer 24

Freehe case where the court decided whether the wife was a chattel of the husband and therefore could not sue him.

Question 25

Interspousal immunity exceptions

Answer 25

Defense cannot be used in divorce proceedings over a tort which happened during marriage, with intentional torts, and with auto accidents.

Question 26

Parent/child immunity

Answer 26

Generally, courts have been less likely to abrogate parent child immunity (Renko case)

Question 27

Exceptions to parent child immunity

Answer 27

auto accidents, emancipated children, in loco parentis (guardian), wrongful death of either parent, step-parent, parent’s business partner, and intentional torts.

Question 28

Charitable immunity

Answer 28

Traditionally bar liability completely. (Only for large charities, usually a soup kitchen will not get the immunity unless large scale).

Question 29

Policy for charitable immunity

Answer 29

Money should be saved for charity not legal costs.

Question 30

Implied waiver doctrine

Answer 30

If you are accepting a benefit from a charity you waive any right to sue them. (exception is if unconscious or incapacitated)

Question 31

State and local government immunity

Answer 31

Traditionally, government could not be sued with it’s consent. Now, government can be sued and the damages are paid out by the taxpayers, which spreads the burden. (Ayala case)

Question 32

Federal government immunity

Answer 32

The federal government is immune from all liability in tort!

Question 33

Federal Torts claims act

Answer 33

Consent on behalf of the U.S. to be sued for negligent or wrongful acts or omissions of any employee of the U.S. acting within the scope of their employment.

Question 34

Feres Doctrine

Answer 34

No recovery for claims arising out of or in course of activity incident to any active duty service member.

Question 35

Discretionary function exception

Answer 35

The action must be discretionary and the conduct must be grounded in social, economic, or political.