Defenses to Negligence

Question 1

Contributory Negligence

Answer 1

Plaintiff’s own negligence may bar plaintiff’s recovery

Analysis: whether plaintiff acted as a reasonable person would under the circumstances

Question 2

For Contributory Negligence and Comparative Fault, ∆ has the burden to prove that plaintiff’s conduct was:

Answer 2

Unreasonable

Question 3

Pure comparative fault allows plaintiff to recover:

Answer 3

No matter how much at fault he is, but we subtract his fault

Question 4

Partial comparative negligence

Answer 4

Plaintiff is denied any recovery if he is responsible for 50% or more of his own damages

Question 5

Types of Assumption of the Risk

Answer 5

1. Express
2. Implied

Question 6

Express Assumption of the Risk

Answer 6

Through written or oral words, plaintiff relieves the ∆ of their responsiblity to be non-negligent towards the plaintiff

Question 7

Assumption of the risk:

When will the waiver be enforced?

Answer 7

As long as:

• the waiver is not void as against public policy; and
• The language is clear

Question 8

Implied Assumption of the Risk

Answer 8

1. Plaintiff had knowledge of the risk
2. Plaintiff appreciated the risk
3. Plaintiff voluntarily chose to confront the risk

Question 9

Firefigher Rule

Answer 9

Where the plaintiff professional rescuer is injured in doing her job,

due to an inherent risk of that job

plaintiff will not be able to recover in negligence against the person who created the need for the rescue; plaintiff assumed the risk that other people will create risks that need rescue

Question 10

Primary assumption of the risk

Answer 10

∆ has no obligation to act non-negligently towards the plaintiff