Defenses to Negligence

Question 1

Contributory Negligence and Intentional Torts

Answer 1

Not a defense to an intentional tort!

Question 2

Definition of Comparative Negligence

Answer 2

Divides the liability between P and D in proportion to their relative degrees of fault. P’s recovery is reduced by a proportion equal to the ratio between his own negligence and the total negligence contributing to the accident

Question 3

Definition of Assumption of Risk

Answer 3

P is said to have assumed the risk of certain harm if he has voluntarily consented to take his chances that harm will occur. Where such assumption of risk is shown, P is completely barred from recovery

Question 4

Elements of assumption of risk

Answer 4

1 - actual knowledge of the particular risk
2 - appreciation of its magnitude
3 - voluntary encountering of the risk (most important!)

Question 5

3 exceptions for contracts under PP exception

Answer 5

1 - when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence
2 - when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence
3 - when the transaction involves the public interest

Question 6

Statute of Repose

Answer 6

max time limit an action can be brought - usually for manufacturers of airplanes or architects

Question 7

Definition of Immunity

Answer 7

a defense to tort liability that is given to an entire class of persons based on their relationship with the prospective P, the nature of their occupation, their status as a governmental or charitable entity, etc

Question 8

Affirmative action and police liability/gov liability

Answer 8

failure to provide police protection generally does not result in liability, unless the police make an affirmative action