Defenses to negligence

Question 1

What are the three types of defenses to negligence?

Answer 1

A. Contributory negligence
B. Comparative negligence (Pure, modified less than 50, and modified equal to or less than 50)
C. Assumption of Risk (Implied + Primary)

Question 2

What are the two defenses to any tort claims?

Answer 2

1. SOL (based on absolute date)

2. Statute of Repose (based on discovery of injury)

Question 3

Define contributory negligence

Answer 3

Plaintiff fails to exercise due care for its own safety and contributes to the negligence of defendant

Question 4

General rule for contributory negligence

Answer 4

Plaintiff’s own negligence contributes to the defendant’s negligence which causes harm to the plaintiff.

Question 5

How is the doctrine of last clear chance applied?

Answer 5

It is a defense raised by the P upon being found contributory negligence to still get full recovery.

Question 6

Who has to burden to prove the last clear chance

Answer 6

Plaintiff

Question 7

T/F: P can raise LCC even if not found to be contributory negligent

Answer 7

False

D must prove P was contributory negligent before P can raise this doctrine

Question 8

T/F: D must take the last opportunity to avoid injury to the P regardless of the P’s negligence

Answer 8

True

Question 9

5 elements for LCC

Answer 9

1- P’s negligence placed itself in peril and there are no means to escape
2- D knew or should have known of P’s peril
3- D had the time and means to avoid injury from occurring
4- D failed or refused to use every reasonable means to avoid injury to P
5- P is injured as a result of D’s failure to avoid injury

Question 10

Define comparative negligence

Answer 10

Compares the D’s fault to the P’s fault and reduces the damages owed to the P by % their own fault.

Question 11

General rule for Pure comparative negligence

Answer 11

P may recover damages reduced by their own liability even if their liability exceeds that of the D.

Question 12

In a pure comparative jx, P is found to be 90% at fault and is awarded $100,000 in damages. How much is owed to P?

Answer 12

P can only recover 10% of the damages ($10,000)

Question 13

General rule for Modified comparative negligence (not greater than; 50/50)

Answer 13

P may only recover damages if liability is NOT more than 50%.

P+ D may be 50% liable each but P cannot be found 51% and still recover

Question 14

In a modified (not greater than) comparative jx, P is found 56% liable and D is found 44% liable. Can P still recover?

Answer 14

No because in this jx, P’s recovery is barred if liability is found greater than D.

Question 15

General rule for modified comparative negligence (less than; 49/51)

Answer 15

P may only recover if liability is LESS than 50%.

If P + D is equally found to be 50% liable, P cannot recover.

if P is found 49% and D is found 50%, P may recover damages reduced by its liability.

Question 16

In a modified (less than) comparative jx, P is found 30% liable and D is found 70% liable. Awarded damages for $100,000. How much can P recover?

Answer 16

In this jx, P may recover because liability is less than 50% but damages will be reduced by liability.

Here, P may recover $70,000

Question 17

Who has the burden to prove P’s fault and degree of fault?

Answer 17

Defendant

Question 18

T/F: The fault of multiple D’s can typically be combined

Answer 18

True

Question 19

Assumption of Risk is similar to ______?

Answer 19

Consent

Question 20

Define express assumption of risk

Answer 20

Arises when parties agree BEFOREhand, either in writing or orally, that P will relieve D of his/her legal duty owed to P.

Question 21

To establish express AOR, there must be a _____ ? What is the result?

Answer 21

clear statement, written or oral, where P expressly relieves D of a duty towards P in advance AND P takes a chance of injury from known risk.

As a result, D is relieved of what would otherwise be a duty to P

Question 22

Define implied assumption of risk

Answer 22

P voluntarily enters into something, knowing D will not protect him against future risk that may arise and P is barred from recovering for injuries resulting from the risk D created by satisfying all of the elements,

Question 23

Elements of implied AOR

Answer 23

1- P actually knew of the specific risk
2- P appreciated the magnitude of the risk
3- P knowingly + voluntarily placed himself in a position to be injured by taking the risk

Question 24

Under implied AOR, D must prove what ?

Answer 24

The P knowingly and voluntarily chose to encounter the risk

Question 25

Define primary implied AOR

Answer 25

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

Whether duty of care exists is a question of law.

Question 26

Primary or secondary implied AOR?

P visits a ski resort for the weekend. P falls and breaks a bone on the slopes.

Answer 26

Primary Implied AOR because D did not have a duty of care to P

Question 27

Define secondary implied AOR

Answer 27

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

Question 28

Primary or secondary implied AOR?

Neighbor loans friend a defective lawn mower. Friend knows of the defect but uses the mower anyway and is injured.

Answer 28

Secondary implied AOR because P knew of the inherent risk and chose to assume the risk anyways.

Question 29

General rule for primary implied AOR

Answer 29

Arises when P impliedly consents to relieve the defendant of a duty to P about specific, known, and appreciated risk AND consent is implied when P engages in conduct.

Question 30

Define SOL

Answer 30

A cause of action for a tort may be barred through lapse of time because of the provisions of a statute of limitations

Question 31

Define statute of repose

Answer 31

Time beyond which an action may not be brought, whether the cause of action has accrued or not.

Question 32

Define accural

Answer 32

The professional’s last act