Negligence- Affirmative Defenses

Question 1

Traditional defenses?

Answer 1

(not in NY)

• classic contributory negligence (no defense to intentional torts though)
• classic assumption of risk (P knew of risk and voluntarily proceeded in face of risk) (express or implied) (no defense to intentional torts)
• partial comparative negligence (not in NY but may be on MBE): P fault under 50% will reduce recovery accordingly. P fault over 50% will be absolute bar to recovery

Question 2

Defenses in NY?

Answer 2

-“primary assumption of risk”: applies only to participants or spectators in sporting or other formal recreational activities. in sports, duty to refrain from reckless conduct
-doctrine of comparative negligence: D must show that P failed to exercise proper care for his own safety. If D proves this, jury will be instructed to balance D’s fault and P’s fault and reduce damages according to P’s fault
NY is pure comparative: P always recovers something, even if P bears more than 50% fault