Defenses to Negligence

Question 1

Four types of defenses
Neg

Answer 1

(1) Comparative and Contributory Negligence
(2) Implied Assumption of Risk
(3) Mitigation Defense
(4) Express Assumption of Risk

Question 2

Contributory Negligence

Answer 2

If D can prove that the P unreasonable conduct contributed in any way to their own injury (barred recovery entirely)

Question 3

Comparative Negligence Approaches

Answer 3

(1) Pure Comparative Neg. - P was 60% at fault, can only recover 40% from D

(2) Modified 49% rule- P needs to be LESS than d to recover. If 50% NO RECOVERY

(3) Modified 50% Rule- P recover when NO MORE AT FAULT than d

Question 4

Express Assumption of risk

Answer 4

Contractual waivers of claims.

Question 5

Secondary Implied Assumption of risk

Answer 5

Involves a P who has knowledge of risk and voluntary exposes himself to it

Question 6

Primary vs Secondary implied
Assumption of risk

Answer 6

Primary- P Knowledge of the risk is irrelevant (baseball)

Secondary- Knowledge or awareness of the danger presented, rather than on the P conduct

Question 7

Secondary Implied Assumption of risk

Answer 7

D must show 2 things
(1) That the P had knowledge of a risk and
(2) That the P voluntarily chose to accept that risk

Knowledge or awareness of the danger presented

Question 8

Failure to Mitigate

Answer 8

Operationally works in two ways
(1) in a causation sense, the extent of the D damages can be limited to only those damages that could NOT have been avoided
(2) Some Statutes (courts) allow the failure to mitigate to be the basis for an assignment of fault in the comparative responsibility system

Overall
- Tort victim is limited to recovering only the amount of damage that a person who took reasonable steps to mitigate their injury would have experienced

Question 9

Vicarious Liability

Answer 9

Employer for the torts of its employees
distinct from contractor relationship

Question 10

Vicarious liability vs direct liability

Answer 10

Employer could be directly liable for its own tortious conduct (negligent training and supervision) and these are separate claims brought alongside vicarious liability

Question 11

Frolic vs Detour

Answer 11

Frolic- the employee has ceased pursuing the employer’s ends and actions fall outside the scope of employment. No liability for employer

Detour- employee has deviated from an employer’s instructions but has not completely abandoned the service of their employer

Question 12

When is conduct within the scope of employment?

Answer 12

• It is of the kind he is employed to perform
• it occurs substantially within the authorized time and space limits
• it is actuated, at least in part, by a purpose to serve the master

Question 13

employee vs contractor factors

Answer 13

An employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work.

The extent of control which the master is authorized to exercise over the details of the work.

Whether the actor is engaged in a distinct occupation or business

Who supplies the tools, other equipment, and place of work

Whether the person is paid on a time basis or by the job

Question 14

Joint and Several Liability

Answer 14

Any liable defendant can be forced to pay up the full amount of Plaintiffs injury

Question 15

Comparative Contribution

Answer 15

The D sue the other D for the money the P took from him in joint and several

Question 16

Several Liability

Answer 16

No party is made to pay more than their fair share

Question 17

In all jurisdictions that have replaced the traditional defense of contributory negligence with comparative fault:

Answer 17

proof of the plaintiff’s comparative fault may operate to reduce the plaintiff’s recovery by the percentage of fault attributable to her.

Question 18

Abe, who is negligently driving while intoxicated, is stopped at a red light. Betty negligently fails to stop and hits Abe’s car in a rear-end collision. Abe sues Betty in negligence for personal injuries he suffered in the collision. In this comparative negligence jurisdiction, what effect will Abe’s negligence have on his recovery?

Answer 18

Abe’s own negligence of being intoxicated does not affect Abe’s recovery because Abe’s intoxication was not a factual cause of his own injuries.
Correct. Abe’s own negligence will affect his recovery only if it was a factual cause of his injuries. This question asks about the requirement of causation as part of a comparative negligence defense. Restatement (Third) Torts § 4.

Question 19

Plaintiff’s recoverable damages in a pure comparative fault jurisdiction are reduced based upon

Answer 19

the percentage of fault attributed to the plaintiff.

Question 20

Medical Consent Withdraw

Answer 20

(1) Withdraw method doesn’t have to be identical to initial manifestation
(2) Clear + unmistakable
(3) Medically feasible to withdraw treatment

Question 21

Deceitful and fraudulent consent

Answer 21

(1) she does not know
(2) He must know that she does not know
(3) He must know it’ll matter to her

P must prove that she was deceived

Question 22

Consent Elements

Answer 22

(1) knowingly and willingly given
(2) level of awareness or info is required/ knowledge of what consenting to
(3) Could be manifested as well
expressions/ implied/ silence

Question 23

the informed consent doctrine in negligence law.

Answer 23

A physician can be subject to liability in negligence if he fails to inform his patient of the material risks and alternative treatments to the patient’s treatment protocol. Failure to inform constitutes a breach of the standard of care in negligence.