Defenses to Negligence

Question 1

Define Contributory Negligence

Answer 1

Common law rule which is no longer used. An all-or-nothing rule that created a total bar to recovery if the P was even slightly negligent in their own harm.

Question 2

3 different types of comparative faults, the states that use them, and what they are:

Answer 2

1) Pure comparative Negligence; Used in Missouri and New York; The P will recovery no matter how much at fault they were. If they were 95% at fault, and D was 5% at fault, the jury awarded $100,000 then P can get $5,000 from D.
2) Modified Comparative Negligence; Illinois and Wisconsin; P can recover only if P’s fault is 50% or less.
3) Modified Comparative Negligence; Kansas and North Dakota; P can recovery only if P’s fault is less than 50%.

Question 3

When can the court allocate full responsibility to the D in the interest of Public policy?

Answer 3

1) D has a special duty to protect P against her own faulty conduct.
2) P found to have no duty to protect herself from D’s conduct. Example: Teacher and student.

Question 4

Traditional Exceptions to Contributory negligence bar under Comparative Negligence:

Answer 4

1) Rescue Doctrine: 2 views
a) Majority: comparative negligence can be used to apportion fault in any case where the D alleges that the rescuer’s actions were negligent.
b) Minority: Prevents application of comparative negligence except in cases where the rescuers actions were reckless.
2) Illegal Activity: Conduct must be both illegal and involve risk of serious physical harm.