Negligence - Affirmative Defenses

Question 1

Define the traditional affirmative defense of contributory negligence.

Answer 1

If P had any responsibility for her injuries, P cannot recover at all.

Most states (including NY) have abolished this.

Question 2

Define the traditional affirmative defense of assumption of risk.

Answer 2

P voluntarily or knowingly assumes the risk of participating in a dangerous activity.

Most states (including NY) have abolished this.

Question 3

What affirmative defenses to negligence are available in New York?

Answer 3

1. Pure comparative negligence (also the majority rule), and

2. Primary assumption of risk

Question 4

Define Pure Comparative Negligence.

Answer 4

P’s recovery is reduced by his percentage of fault. The substantiality of his fault is irrelevant. If he is 99% at fault, he can still recover that 1% from D.

This is the majority approach.

Question 5

Define Partial or Modified Comparative Fault.

Answer 5

P’s recovery is reduced by his percentage of fault, unless P is +50% responsible for his own injuries.

If P is +50% at fault, he will not recovery anything for his injuries.

This is the minority approach.

Question 6

Define NY’s Primary Assumption of Risk doctrine.

Answer 6

This applies when P participates in or watches an athletic activity. Participants do not owe a duty of reasonable care. Unless D is acting recklessly or willfully, P will not recover for injuries sustained at the game.