Defenses to negligence

Question 1

Defenses to negligence

Answer 1

CCC

Contributory negligence
Comparative fault/negligence
Consent (AoR)

AoR has 3 types:

1. Express - no duty owed, embraces
2. Primary implied - no duty owed, embraces
3. Secondary implied - considers reasonableness of P’s conduct

AoR can also be:
Contractual
Implied

Comparative fault can be:
Pure comparative negligence
Partial/modified comparative negligence

Question 2

Contributory negligence

Answer 2

P cannot recover where contributorily negligent unless D:

Wanton and Willful
Last clear chance

Not a defense to intentional torts

Question 3

Comparative fault types

Answer 3

P’s own negligence limits recovery by comparison to D’s:

Types

Pure comparative negligence (pure % based)
Modified comparative negligence (51% or more = no recovery) (Minority – equal fault 50/50, no recovery)

Question 4

Assumption of risk

Answer 4

1. Defense to negligence
2. when P knowingly and willfully
3. embraces risk
4. for his own purpose.

§§ 496A, 496C

Also can be a defense to STRICT liability claim.

Express assumption - P agrees in advance
Implied assumption - Reasonable to presume P implicitly assumed risk

Most courts that use CF do not recognize AoR as a defense because reasonableness of both parties’ behavior is taken into account when determining fault;

i. If P acted unreasonably → not negligent.
ii. If P acted unreasonably → damages reduced by P’s % fault

Question 5

Tort damages available, generally

Answer 5

1. Compensatory (general, special/specified & consequential) - to compensate for injury or losses
2. Nominal - to prove wrongful conduct despite no actual damages
3. Punitive - to punish for willful, malicious or fraudulent acts

3 subtypes of compensatory:

1. General - non-economic, harder to quantify (pain and suffering)
2. Special - economic, quantifiable (medical expenses, lost wages)
3. Consequential - remote but foreseeable (lost profits)

Not damages, but Equitable remedies include - injunction or specific performance

Question 6

Implied assumption of risk types

Answer 6

Primary implied AoR - P warned of danger but proceeds anyway with dangerous conduct. NO NEGLIGENCE by D, so no breach of duty and no AoR defense required

Secondary implied AoR - Prima facie case for negligence - Look at reasonableness of P’s behavior (burning house to save child vs. hat)

Question 7

Last clear chance doctrine

Answer 7

Permits negligent P to recover if:

1) D was negligent
2) D had last clear chance
3) P was unable to extricate himself and
4) D knew of P’s predicament