Negligence - damage, defense

Question 1

Contributory Negligence

Answer 1

• Contributory negligence is not a defense to D’s wanton and willful misconduct or intentional tortious conduct.
• Last Clear Chance: Last clear chance permits P to recover despite her contributory negligence. The defendant must have had the “last clear chance” to avoid the accident. Must be at the time of the accident.

Question 2

More about Last Clear Chance

Answer 2

1) Helpless Peril
D will be liable if he knew or should have known of plaintiff’s predicament.

2) Inattentive Peril
In “inattentive peril” situations (i.e., plaintiff could have extricated herself if attentive), D must actually have known of plaintiff’s predicament.

Question 3

Comparative negligence

Answer 3

1. Pure comparative Neglignece: the trier of fact weighs plaintiff’s negligence and reduces damages accordingly.
2. Partial comparative negligence : bars plaintiff’s recovery if his negligence was more serious than defendant’s negligence (or in some states at least as serious as defendant’s).

Question 4

Assumption of Risk

Answer 4

1. D has only a limited duty to the P. Thus, a court may protect the D by holding that the defendant did not breach his limited duty of care. (e.g., being hit by a foul ball at a baseball game)
2. Where P unreasonably encountered a known risk, D’s initial breach of duty to P is superseded by P’s assumption of a risk. Analyze it under comparative negligence rules.
3. Express assumption of risk continues to be a complete defense.