Defenses (and Partial Defenses) to Negligence

Question 1

Define contributory negligence

Answer 1

If the plaintiff negligence contributes to their damages, they cannot recover from the defendant.

Question 2

What is the Rule of 7?

Answer 2

A. Under 7: incapable of negligence
B. 7-14: presumed incapable
C. Over 14: presumed capable

Question 3

Define the 5 elements of Last Clear Chance

Answer 3

1. P negligently placed themself in peril and couldn’t escape
2. D knew or should have known P was in peril
3. D had time and means to avoid the accident
4. D failed or refused to use every reasonable means they could to avoid injury to P
5. P was injured as result of D’s failure

Question 4

Define “pure” comparative fault

Answer 4

A plaintiff’s damages are reduced in proportion to the percentage of negligence attributed to them

Question 5

Define the two types of “modified” comparative fault theories

Answer 5

1. The plaintiff must not be more than 50% liable; or

2. The plaintiff must be less than 50% liable

Question 6

Define express assumption of risk

Answer 6

Parties agree either in writing or orally, that the plaintiff will relieve the defendant of their legal duty toward the plaintiff

Question 7

What are the elements of express assumption of risk?

Answer 7

1. Clear statement written or oral
2. Where P in advance expressly relieves D of the duty toward P; and
3. P takes the chance of injury from a known risk

Question 8

Define implied assumption of risk

Answer 8

P voluntarily enters into something knowing D will not protect them against future risk that may arise. P is barred from recovering for injuries resulting from risk D created

Question 9

What are the elements of implied assumption of risk?

Answer 9

1. P actually knew of the specific risk
2. P appreciated the magnitude of the risk
3. P knowingly and voluntarily placed themself in a position to be injured by taking the risk

Question 10

Define primary implied assumption of risk

Answer 10

D had no duty of care to P because P assumed the inherent risk

Question 11

Define secondary implied assumption of risk

Answer 11

D had duty of care and was negligent; but P assumed the risk of the negligence anyway

Question 12

What is a Mary Carter agreement?

Answer 12

A form of settlement in which one of the several tortfeasors settles with the plaintiff

Question 13

Define statue of limitation

Answer 13

Time in which an action may be brought. It starts to run after the action accrues, and an action may not be brought after the running of the limitations period. A SOL cuts off an existing right of action

Question 14

Define statute of repose

Answer 14

Sets out a time period in which an action must accrue. If the event that gives rise to a cause of action does not take place within he limits set out in the statute of repose, no action may be brought. A SOR does not bar an existing right of action, it prevents a right of action from coming into existence in the first place.

Question 15

Define comparative negligence

Answer 15

Comparative negligence compares the plaintiff’s fault to the fault of the defendant. The jury assigns the fault by percentage and the defendant must pay the amount they are deemed at fault.

Question 16

Define the doctrine of respondent superior

Answer 16

An employer is vicariously liable for an employee’s tortious actions if committed in the scope of their employment

Question 17

When is an employee not within the scope of their employment?

Answer 17

When they are going to and from work, except before going to and from work an employee stops for a work related reason

Question 18

When analyzing respondent superior, what two questions must you ask?

Answer 18

1. Is the wrongdoer an independent contractor to an employee?
2. If employee, was the employee acting within the scope of their employment?

Question 19

What determines the status of an independent contractor?

Answer 19

1. One who contracts to do work according to their own methods and judgment
2. Free from control and direction of their employer in all matters connected with the performance of the service

Question 20

Elements of a joint enterprise

Answer 20

1. An agreement, express to implied to enter into an undertaking
2. A community of interest in the objects and purposes to be accomplished in the undertaking, and
3. Equal authority to control the undertaking

Question 21

T/F: An employer is liable for failing to use reasonable care in selecting a competent contractor/employee

Answer 21

True

Question 22

When an employee hires an independent contractor to carry out a highly dangerous activity, are they still vicariously liable?

Answer 22

Yes