Defenses to Negligence

Question 1

What is a Pure Contributory Negligence Standard?

Answer 1

ANY contributory negligence by the P COMPLETELY bars recovery.

Question 2

What are the elements of an Implied Assumption of Risk?

Answer 2

1. One knew of the risk AND

2. One voluntarily proceeded in the face of it

Question 3

What is the exception to an implied assumption of risk?

Answer 3

If there is:

1. No other viable alternative OR
2. An Emergency to save himself or others

Question 4

What is the Partial Comparative Negligence standard?

Answer 4

P is BARRED from recovery if he is MORE negligent (>50%) than the other party.

Question 5

In which Jurisdiction(s) is an implied Assumption of Risk used?

Answer 5

ONLY in pure contributory negligence state. only express applicable for others.

Question 6

What is the Pure Comparative Negligence standard?

Answer 6

Party can STILL recover even if they are MORE negligent.

Ex. P is 90% negligent, D is 10%, P recovers 10 %.

Question 7

What affect does D’s reckless tortious have in each jurisdiction?

Answer 7

Contributory: D’s reckless conduct will NOT be a good defense
Comparative: Contributory negligence will OFFSET the amount of the award

Question 8

What will P recover for knowing contributory negligence in a contributory negligence state?

Answer 8

NOTHING.

Question 9

What will P recover for unknowing contributory negligence in a contributory negligence state?

Answer 9

EVERYTHING

Question 10

What will P recover for unknowing or knowing contributory negligence in a comparative negligence state?

Answer 10

Both can be asserted against recovery

Question 11

What is the last clear chance doctrine?

Answer 11

Contributory negligence D successfully contends that AFTER his negligence, P STILL had the last clear chance to avoid the accident, and thus P’s contributory negligence should be disregarded as P’s defense.
In comparative neg., P can still recover, just less.