Negligence - Defenses

Question 1

Contributory/Comparative Negligence

What must the defendant show to use the Contrib/Compare Negligence Defense?

Answer 1

1. The applicable SOC for the plaintiff’s conduct
2. The plaintiff’s breach ofthat standard of care
3. The plaintiff caused the harm (CiF & PxC)

Question 2

Contributory/Comparative Negligence

How do courts determine damages in contributory negligence jx?

Answer 2

All or nothing. If the plaintiff is found to have had ANY contributory negligence there is NO recovery.

Question 3

Contributory/Comparative Negligence

What are the three types of comparative negligence?

Answer 3

1. Pure (P’s recovery is reduced by their percentage of fault)
2. Modified - Equal (if P contributed 50% or more, P recovers 0)
3. Modified - Proportional (if P contributed more than 50%, P recovers 0)

Question 4

Assumption of Risk - Express

Define Express Assumption of Risk

Answer 4

Exists when, by contract or otherwise, a plaintiff explicitly agrees to accept a risk - COMPLETE DEFENSE
* May be invalidated in specific instances when it would be contrary to public policy

Question 5

Assumption of Risk - Express

What is the test for express assumption of risk?

Answer 5

1. P expressly agrees to waive liability with words; and
2. The language of the agreement is clear; and
3. The contract waives no more than negligence; and
4. It is not void as against public policy

Question 6

Assumption of Risk - Express

What are the public policy factors?

Answer 6

1. Concerns a type of business generally thought to be suitable for public regulation
2. The party seeking exculpation is performing a service of importance to the public
3. The party makes service available to any member of the public who seeks it
4. The party offering the service has a decisive advantage in the bargaining process
5. Party does not offer an option to pay additional fees to obtain protection against negligence
6. The person seeking the service is placed under the control of the seller

Question 7

Assumption of Risk - Implied

When does Implied Assumption of risk apply?

Answer 7

When P’s voluntary exposure to risk is derived from behavior and not from explicit assent

Question 8

Assumption of Risk - Implied

What 3 things must be present to show Implied Assumption of Risk?

Answer 8

1. Knowledge of the risk; and
2. Understanding of the risk; and
3. Voluntarily takes on the risk

Question 9

Assumption of Risk - Implied

Define “knowledge of the risk”

Answer 9

P must have ACTUAL conscious knowledge of the particular risk (this is a subjective test, not a SHOULD HAVE KNOWN test)

Question 10

Assumption of Risk - Implied

Define “Understands the risk.”

Answer 10

P must have actual understanding or appreciation of the particular risk (subject - not SHOULD HAVE KNOWN)

Question 11

Assumption of Risk - Implied

Define “Voluntarily takes on the risk.”

Answer 11

P must voluntarily expose themselves or their property to the risk to assume the risk (P goes to lake to ride jetski. P falls off jet ski. P voluntarily rode the jet ski)

Question 12

Assumption of Risk - Implied

What is the effect of showing Implied Assumption of Risk?

Answer 12

It is merged into the comparative fault assessment. It may reduce recovery but will not completely bar recovery. Someone who assumed risk may be described as having conduct that fell below the standard of care of an RPPSSC.

Question 13

Avoidable Consequences Doctrine

What is D liable for?

Answer 13

P must not allow their harms to be made worse, D is not liable for harm that P could have avoided through reasonable care.

Question 14

Rescuer’s Rule

How does the firefighter/rescuer rule function?

Answer 14

Firefighters are reasonably assuming the risk - public policy reasons for preventing suits against individual who call for assistance.
* EXCEPTION - negligence after the rescuer has arrived is not covered, eg failure to warn of a known concealed danger