Defenses to Negligence

Question 1

Contributory Negligence - Standard of Care Rule

Answer 1

The standard of care required is the same as that for ordinary negligence.

Question 2

Contributory Negligence - Rescuers

Answer 2

A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent.

Question 3

Contributory Negligence - Remaining in Danger

Answer 3

It may be contributorily negligent to fail to remove oneself from danger

Question 4

Imputed Contributory Negligence

Answer 4

A plaintiff’s action for his damages is not barred by imputed contributory negligence. He may proceed against both negligent parties as joint tortfeasors to the extent that each is a legal cause of the harm.

Question 5

When will Contributory Negligence be Imputed?

Answer 5

Contributory negligence will be imputed only where the plaintiff and the negligent person stand in such a relationship to each other that the courts find it proper to charge plaintiff with that person’s negligence.

Question 6

Assumption of Risk - Definition

Answer 6

To have assumed risk, either expressly or impliedly, the plaintiff must have known of the risk and voluntarily assumed it. It is irrelevant that plaintiff’s choice is unreasonable.

Question 7

Implied Assumption of Risk - Explanation

Answer 7

1. Knowledge of Risk - plaintiff must have known of the risk, knowledge may be implied where the risk is one that the average person would clearly appreciate.
2. Voluntary Assumption - plaintiff must voluntarily go ahead in the face of the risk.

Question 8

Express Assumption of Risk

Answer 8

The risk may be assumed by express agreement.

Question 9

“Partial” Comparative Negligence

Answer 9

Most comparative negligence jurisdictions will still bar the plaintiff’s recovery if his negligence passes a threshold level. (50 or 51%)

Question 10

“Pure” Comparative Negligence

Answer 10

The pure variety of comparative negligence allows recovery no matter how great plaintiff’s negligence is.