Defenses to negligence

Question 1

Contributory negligence

Answer 1

If a person exercising reasonable and ordinary care could have avoided the injury, π cannot recover. Not used much anymore

Question 2

Pure comparative negligence

Answer 2

π’s damages reduced according to the percentage of negligence contributed to them

Question 3

Modified comparative negligence

Answer 3

Damages reduced according to percentage attributed to π

Question 4

50% rule

Answer 4

π is less than 51% negligent (if over this number, π gets nothing)
- if 50 % negligent- π gets 50% of damages

Question 5

49% rule

Answer 5

π can recover the reduced damages if less than 50% negligent. (if 49% negligent- gets 51% of damages) (cant recover if 50% negligent)

Question 6

Unit rule

Answer 6

when multiple tortfeasors liable, π’s share of negligence compared to the sum of shares of negligence apportioned to each tortfeasor, if π’s share is less than ∆’s- π can recover

Question 7

Wisconsin rule

Answer 7

in the case of multiple tortfeasors- any ∆ who’s percentage of negligence is lower than the πs is dismissed from the action

Question 8

Express assumption of risk

Answer 8

waiver of the right to sue by advance agreement- consent must be freely given and made for particular risk that makes injury foreseeable (ex: signing a waiver before skydiving)

Question 9

Implied primary assumption of the risk

Answer 9

Idea that activity may entail risks of injury even when carefully conducted- if participant is injured, they likely cant prove negligence bc risk is inherent (ex: falling while skiing)

Question 10

secondary implied assumption of the risk

Answer 10

arises when ∆ was negligent and that negligence created a dangerous situation- π becomes aware of the danger but does the activity anyway

Question 11

Governmental immunity

Answer 11

US waived sovereign immunity as to tort claims- but with exceptions

Question 12

discretionary function exception

Answer 12

Shields federal agents from liability when carrying out a function that involves making a judgement based on public policy- but must be the kind of discretionary function the exception was designed to protect

Question 13

Spousal immunity

Answer 13

old rule- a spouse used to not be able to sue another for a tort to protect the “harmony of the home”- abolished by Price v. Price

Question 14

Parental immunity

Answer 14

Cts have held that parents have privilege to discipline as long as there’s a good faith use of reasonable force to train or control a child

Question 15

cases where parents are immune

Answer 15

1. alleged negligence involves an exercise of parents control over a child
2. alleged negligence involves an exercise of ordinary parental discretion