Negligence Affirmative Defenses

Question 1

Express assumption of risk

Answer 1

Δ agreed to K terms
→ invalidated if
(1) violates public policy interest
(Tunkl factors) (a) did plaintiff have actual or constructive knowledge of K provision (b) does it violate public interest
(2) fails for clarity / express negligence rule: must expressly indicate claims being released included claims based on company’s “negligence” or “fault” language

Question 2

Secondary Implied AOR

Answer 2

P has knowingly and voluntarily decided to encounter a risk previously created by the D’s negligence, releasing the Defendant from liability
(1) actual knowledge of the danger;
(2) appreciation of the gravity of the danger; and
(3) voluntary exposure/encounter to the danger.
***Knowledge of the danger can be established if the danger was so obvious that one was bound to know of it.”

Yes, apply in comparative fault jdx

Question 3

Qualified implied secondary assumption of the risk (reasonable)

Answer 3

Δ has acted negligently
Π reasonably chooses to encounter risk (e.g. enters burning house to save child; jdx usually Δ loses/others dont)

-Yes (under comp fault)
-No (not on its own)

Question 4

Qualified implied secondary assumption of the risk (unreasonable)

Answer 4

Δ has acted negligently
Π unreasonably chooses to encounter risk (e.g. enters burning house to save hat)

-Yes (under comp fault jdx)
-No (not on its own)

Question 5

Unqualified secondary implied assumption of the risk

Answer 5

Δ has acted negligently
Π chooses to encounter risk (doesn’t care about reasonableness)

-Yes (under comp fault)
-No (not on its own)

Question 6

Primary implied assumption of risk

Answer 6

Duty “whether Δ duty encompasses risk encountered by Π→ no duty if inherent”
Breach

Δ has acted reasonably (b/c risks Π took are inherent)

Π assumes inherent risk/danger
→ Δ duty not to negligently increase risk

-Hopper (yes AOR); ski (yes AOR)

Question 7

Contributory Negligence

Answer 7

Defendant friendly, “blame the plaintiff”; for jury to decide

-In its strictest form, bars a plaintiff from recovering any damages if they are found to have contributed in any way to their own injuries.
-Plaintiff has breached duty of care to themselves to act as reasonable under the circumstances
-Defendant has to prove plaintiff’s negligence (1) duty (2) breach (3) causation

-Case: fall from horse

Question 8

Comparative Fault

Answer 8

-More flexible system that allows for the allocation of damages based on the percentage of fault attributed to each party involved, including the plaintiff

-Compensation is reduced based on their percentage of fault.

1. ) Pure: P’s damages are reduced by P % of fault
   
   • e.g. a P 90 % → recover 10%
   • California follows this
2. ) Modified form: recover but only if less than 50/49 % → Damages - P % of fa
   (1) does not exceed 50 % jdx or
   (2) is less than 49 % jdx

Question 9

Apportionment (for jury):

Answer 9

1.) P behavior is measured against reasonable person(faultless) behavior under the circumstances
2. ) degree to which behavior fell below norm/reasonable person standard and make this into numerical percentage
3.) apply to reduce damages

Question 10

Comparative assumption of risk

Answer 10

A plaintiff is not barred from recovery by the doctrine of assumption of risk unless his degree of fault arising therefrom equals or exceeds the combined fault or negligence of the other parties to the accident. → P negligence must be less than D fault

-staircase fall

Question 11

Multiple tortfeasors in the modified comparative fault

Answer 11

1. ) Unit Rule (majority): P’s share of the negligence is compared to the sum of the shares of negligence apportioned to the other tortfeasors.
   -If the P %< sum Ds→ can recover from each defendant

2.) Wisconsin Rule (minority): P’s share of the negligence is compared in turn with the negligence apportioned to each individual defendant. Any defendant % < P% → case is dismissed