Defenses to Negligence Torts

Question 1

Defenses to Negligence Torts

Answer 1

1. Contributory/comparative fault

2. Assumption of risk

Question 2

Pure contributory fault

Answer 2

If P is negligent at all, bars P’s recovery

= $0 if P is even 1% at fault

Question 3

Last Clear Chance doctrine

Answer 3

P’s contributory negligence is not a bar if P can show that negligent D had last clear chance to avoid the accident

Question 4

Comparative/Contributory Fault - TN

Answer 4

• Modified comparative negligence system

- 50% rule

Question 5

Comparative/Contributory Fault - Majority

Answer 5

Either

• Pure comparative fault
• 50% rule (modified comparative fault)
• 51% rule (modified comparative fault)

Question 6

Comparative/Contributory fault - Minority

Answer 6

Pure contributory fault

Question 7

States with Pure Contributory Fault

Answer 7

1. Alabama
2. DC
3. Maryland
4. North Carolina
5. Virginia

Question 8

Pure Comparative Fault

Answer 8

• Assign % of fault to P and D
• P can recover if less than 100% at fault
• P’s recovery is reduced by % of fault

Question 9

50% Rule

Answer 9

• Modified comparative negligence
• If P is 50% or more at fault, cannot recover
• If P is 49% or less at fault, can recover
• Amount recovered is reduced by P’s % of fault

Question 10

51% Rule

Answer 10

• Modified comparative negligence
• If P is 51% or more at fault, cannot recover
• If P is 50% or less at fault, can recover
• Amount recovered is reduced by P’s % of fault

Question 11

Assumption of Risk Types

Answer 11

1. Express assumption of risk

2. Implied assumption of risk

Question 12

Example of Express Assumption of Risk

Answer 12

Exculpatory contracts/waiver

Question 13

Express Assumption of Risk

Answer 13

1. By contract, P agrees to
2. Voluntarily encounter
3. Known risk
4. While appreciating magnitude of risk
5. Created by D’s negligence

Question 14

Implied Assumption of Risk

Answer 14

1. By conduct/participation, P agrees to
2. Voluntarily encounter
3. Known risk
4. While appreciating magnitude of risk
5. Created by D’s negligence

Question 15

Assumption of Risk

Answer 15

1. P agrees to
2. Voluntarily encounter
3. Known risk
4. While appreciating magnitude of risk
5. Created by D’s negligence

Question 16

Example of Implied Assumption of Risk

Answer 16

Baseball spectators in stadium assume risk of being injured by foul balls projected into the stands

Question 17

Exception to Assumption of Risk

Answer 17

General release does not relieve D of liability for

1. Gross negligence
2. Intentional or reckless misconduct
3. Willful or wanton negligence