Defenses to Negligence

Question 1

Name the defenses to negligence

Answer 1

1. Contributory
2. Comparative
3. Assumption of the Risk
4. Statute of Limitations
5. Preemption

Question 2

What are the exceptions to Statute of Limitations as a defense?

Answer 2

1. Tolling
2. Grace Period
3. Equitable Estoppel

Question 3

What is Contributory Negligence?

Answer 3

Minority view - bars recovery if π was also negligent

∆ must plead and prove whole negligence claim for π

Question 4

What are the exceptions to contributory negligence?

Answer 4

Rescue doctrine

If ∆ was reckless or intentional (way worse than π)

Last Clear Chance

Question 5

What is the Rescue Doctrine?

Answer 5

Old view - π is totally excused from any negligence because π was trying to rescue someone as a result of ∆’s negligence

Modern view - jury can still consider π’s negligence (because we want to promote safe rescues)

Question 6

What is the Last Clear Chance?

Answer 6

If ∆ could’ve prevented the accident that was caused by π and chose not to, then π is not barred

Question 7

What happened to contributory negligence?

Answer 7

Mostly disappeared with the advent of comparative fault, but can still see traces of it

Question 8

How does π’s criminal activity factor into contributory fault?

Answer 8

Old view - barred π’s recovery

Modern view - depends on situation

Question 9

How does proximate cause play into contributory fault?

Answer 9

π’s negligence still has to be the proximate cause of the accident, or else it doesn’t count

Question 10

When does a Bexiga situation occur?

Answer 10

When ∆ has duty to protect π from π’s own negligence because

• ∆ knows or should know of π’s inability or disability to care for self
• The risk is nonreciprocal and only will affect π

Question 11

What’s the effect of a Bexiga situation?

Answer 11

π’s Defense to Comparative

Even if π was negligent, if π can show it was Bexiga then π can recover without any reduction for own negligence

Question 12

What kind of defense is Comparative Fault?

Answer 12

Partial - π can still recover minus the amount π was negligent

Question 13

What is comparative fault?

Answer 13

Majority view - requires whole negligence analysis on π, and deducts amount π was negligent from π’s recovery

Question 14

What are the types of comparative fault?

Answer 14

1. Pure = π recovers minus amount π was negligent
2. Modified = π’s recovery is barred if π was more than a certain amount of negligent (WI statute says no recovery if π was 51% negligent)

Question 15

What does the third restatement say about comparative fault?

Answer 15

Third restatement calls it ‘comparative responsibility’ and says to consider

• the nature of π’s risk-creating act and
• the causal connection

Question 16

What are some ways to calculate fault?

Answer 16

• Comparative costs of avoiding the injury
• Comparative risk
• Nonreciprocal risk

Question 17

What are the kinds of assumption of the risk?

Answer 17

Express (Pure) Assumption

Implied Assumption (Implied Consent)

Question 18

What is Express Assumption of the Risk?

Answer 18

Usually a contractual waiver, can be oral or written

Question 19

Who can’t use waivers to waive liability?

Answer 19

Common carriers, innkeepers, public utilities

Question 20

Name the Tunkl Factors

Answer 20

1. Business is suitable for public regulation
2. Essential or public service
3. Service is available to any member of the public
4. Room to negotiate
5. Services gives seller way more bargaining power
6. Seller basically has buyer by the nut sack

Question 21

What are the Tunkl Factors?

Answer 21

Reasons to not enforce a contractual waiver

Question 22

What do you do if you see a waiver?

Answer 22

1. Make sure waiver applies to what happened (waivers don’t apply to non inherent risks)
2. Tunkl Factors to see if it should be enforced

Question 23

What are inherent risks?

Answer 23

Inherent risks are risks that are left over after use of reasonable care

Question 24

What are the interpretations and claim-ability for assumption of the risk today?

Answer 24

1. π consented to the risk = no claim
2. π is contributorily negligent = reduced claim
3. ∆ had no duty = no claim
4. ∆ was not negligent = no claim

Question 25

What are the factors of Implied Assumption of the Risk (Implied Consent)?

Answer 25

1. π knew of risk
2. π voluntarily engaged in the risk
3. π consented to release ∆ from obligation to due care

Question 26

What is primary assumption of the risk?

Answer 26

If all 5 negligence elements are not met, it’s primary = no claim

Because ∆ had no duty, so there was no breach

Question 27

What is secondary assumption of the risk?

Answer 27

Basically comparative fault = reduced claim

If all 5 negligence elements are met, it’s secondary. Means ∆ was negligent, but so was π, so must reduce π’s recovery accordingly

Question 28

Who decides what an inherent risk is?

Answer 28

Judge

Question 29

What is the baseball rule?

Answer 29

If there is enough protected seating and you choose to sit out in the open, you have assumed the risk of getting hit by a ball

Question 30

What are the steps for Assumption of the Risk analysis?

Answer 30

1. Was ∆ under a duty of care?
2. If yes, was duty relieved by π’s consent or willingness to accept the risk?
3. If yes, was it
   - Express –> Tunkl
   - Implied - Was there a duty?
   - –> if no, it’s primary
   - –> if yes, it’s secondary (comparative)

Question 31

What is the statute of limitations?

Answer 31

Dictated by state statute, usually 1-3 years

Question 32

What is the Right of Recovery Rule?

Answer 32

For SoL - claim accrues when all the facts essential to π’s right of recovery have occurred

Question 33

What is the Continuing Treatment Rule?

Answer 33

For SoL- claim accrues when your doctor stops being your doctor

Question 34

What is the Discovery Rule?

Answer 34

Majority rule for SoL - claim accrues when π discovered or should have discovered the injury and ∆’s role in it

Question 35

What are the main rules for when a claim accrues?

Answer 35

1. Right of Recovery
2. Continuing Treatment
3. Discovery Rule - majority

Question 36

What is Tolling and when does it apply?

Answer 36

Pauses the clock on SoL

Applies for minority (happened when π was a minor, so clock starts when π turns 18) and mental handicap (π literally can’t manage own business affairs)

Question 37

What is a grace period and when does it apply?

Answer 37

Extends the length of the statute of limitations. Mostly for repressed diddling memories

Question 38

What is a notice bar?

Answer 38

If you sue the government, you have to give them notice before you file. If the notice time period goes beyond statute of limitations, you lose

Question 39

What is equitable estoppel?

Answer 39

∆. did something to threaten π so π wouldn’t file the claim before the statute of limitations ran out.

• False representation / fraudulent concealment of a kind that π couldn’t figure out with due diligence
• Made with intention that π would rely on it
• π relied on it in good faith

Question 40

What are the types of preemption?

Answer 40

Express and Implicit

Question 41

What is express preemption?

Answer 41

If a statute literally says that this type of claim is only for the feds

Question 42

What is implicit preemption?

Answer 42

Has to be very clear

• Fed law is so pervasive that there’s no room for state (drugs)
• Fed interest is so high that there’s no room for state (foreign trade)
• Feds purposely excluded state (train speed limits)
• Physically impossible to do both

Question 43

What is a statute of ultimate repose?

Answer 43

Bars claim after a period of time (usually 10 years)

No exceptions.