Defenses to Negligence

Question 1

Contributory Negligence

Answer 1

Traditional even though mostly abolished

• π’s failure to use the relevant degree of care for his or her own safety
• IF π IS contributorily negligent = πlose and recover NOTHING
• There’s also doctrine of last clear chance

Question 2

Assumption of Risk

Answer 2

Express Assumption of the Risk: “I’ll take my chances”

• Also completely bar recovery in Neg. case (π)
• Except: Public Policy

Implied Assumption of the Risk:
-KNOWLEDGE of the Risk
-VOLUNTARY encounter
-Absence of an alt. destroys voluntariness
-Emergency situations destroy voluntariness
Traditionally if KNOWING & VOLUNTARY = Bar to recovery

Question 3

Comparative Negligence

Answer 3

(1) Pure Comparative = π always recovers something even when π is predominant Neg. actor
(2) Modified Comparative = π reduced up to point IF above threshold (50%) then barred.

Comparative Neg. supplants ALL OTHER affirmative defenses EXCEPT = Express Assumption of Risk