Defenses to Negligence

Question 1

Defenses to Negligence

Answer 1

Contributory negligence
Comparative Fault
Assumption of Risk
Avoidable Consequences Doctrine

Question 2

Contributory Negligence/Comparative Fault

Answer 2

Defendant must prove

Applicable standard of care

Plaintiff breached that standard of care

The plaintiff was the cause of some of the harm (cause in fact and proximate cause)

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Contributory negligence is a 100% bar to relief

Comparative fault will result in the plaintiff’s damages being reduced according to their percentage of fault

Question 3

Avoidable consequences doctrine

Answer 3

Plaintiffs must not make or allow their harms to be made worse

Question 4

Express Assumption of Risk

Answer 4

Plaintiff expressly agrees (written or otherwise) to waive liability with words

The language of the agreement is clear

The contract waives no more than negligence

And it is not void as against public policy

Question 5

Implied Assumption of Risk

Answer 5

The plaintiff has knowledge of the risk (actual knowledge)

The plaintiff understands the risk (They need not know the exact risk of the specific injury, only a general risk of injury)

The plaintiff voluntarily takes that risk

Question 6

Tunkl Public Policy Factors

Answer 6

The business is publicly regulatable

The party performs a great service to the public which is a practical necessity for some

The party is willing to perform this service to the public or to people within their established standards

The party has a decisive advantage of bargaining strength against the other

In exercising this superior bargaining power, the party adds the exculpation clause, and offers no way for the other party to pay fees to obtain protection against negligence

The other party is placed under their control and subject to the risk of their carelessness