Negligence: Defenses

Question 1

True or false: if a plaintiff is found contributorily negligent, her recovery is barred completely

Answer 1

Mostly false, minus some states.

Last clear chance
Comparative fault

Question 2

Explain last clear chance

Answer 2

Allows a plaintiff to recover upon showing that the defendant had the last clear chance to avoid injury and failed to do so

Question 3

What are the differences between pure comparative negligence and modified comparative negligence

Answer 3

Pure = P’s recovery reduced based on her % of fault

Modified = If P was more at fault than D, she recovers nothing

Note: some jurisdictions hold that if P and D are equally at fault, P does not recovered

Question 4

How is comparative negligence handled if there is more than one defendant?

Answer 4

P’s negligence is compared to the multiple Defendant’s negligence in total

Question 5

Can one person’s negligence be imputed to another party?

Answer 5

Yes, but it is generally disfavored.

Question 6

True or false: contributory negligence is a defense for intentional torts

Answer 6

False. Willful or wanton conduct negates any plaintiff’s fault and should not bar her recovery.

Question 7

When looking at exculpatory provisions waiving liability, what two questions do courts ask?

Answer 7

1. Is the waiver clear?
2. Is the waiver enforceable?

Then weigh factors to determine if waiver can to limit liability