Defenses to Negligence

Question 1

Contributory Negligence

Answer 1

Rule: If the plaintiff was negligent in some way related to the accident; that negligence completely precluded plaintiff’s recovery.

This is an old common law rule that only a few districts still follow.

Question 2

Last Clear Chance Doctrine

Answer 2

Rule: Allows a negligent plaintiff to recover upon showing that the defendant had the last clear chance to avoid injuring the plaintiff, but failed to do so.

If this doctrine applies, Contributory Negligence cannot be a defense.

[A is jaywalking. B therefore does not all of a sudden have the ability to run A over and hope for a contributory negligence defense.]

Question 3

Comparative Fault

Answer 3

Plaintiff’s negligence does not bar recovery, but it does limit it.

Pure Comparative Negligence: The plaintiff’s recovery is reduced by the plaintiff’s percent of fault.

Modified Comparative Negligence: If the plaintiff’s negligence is MORE than the defendant’s, then the plaintiff is barred completely from recovery. [Some jurisdictions apply if equally at fault.]

Multiple Defendants: If multiple defendants are at play, then apply the comparison to the total negligence amongst the defendants.

Question 4

Imputed Contributory Negligence

Answer 4

One party’s negligence is imputed to another party.

[Employee is negligently driving and hits another negligent driver. The negligence of the employee can be imputed on the employer. Or it can apply to business partners.]

Generally it’s disfavored. Does not apply to:

1. Children plaintiff’s whose parent’s negligence was contributing cause of the suit against third party.
2. Married plaintiff whose spouse was contributorily negligent in causing harm against third party.

Question 5

Assumption of Risk

Answer 5

This defense applies when:

1. A party knowingly and willingly embraces a risk on their own.

It can be express or implied.

Similar to the defense of consent in intentional torts.

Question 6

Express Assumption of Risk

Answer 6

Typically seen as an exculpatory clause in a contract. Generally, parties can contract to disclaim liability.

Courts will examine exculpatory contracts by seeing if they are CLEAR and ENFORCEABLE [no defenses to enforcing contracts].

Courts will not enforce exculpatory clauses when:

• The waiver disclaims liability for reckless or wanton conduct
• Gross disparity in bargaining power
• Party seeking to enforce the provision offers services of great importance to the community [i.e. medical services]
• Provision is subject to contract defense
• Enforcement would be against public policy

Question 7

Implied Assumption of Risk

Answer 7

Examples: Spectators or Participants in Athletic Events