Negligence: Defenses

Question 1

What are two defenses to negligence?

Answer 1

• Contributory negligence (and comparative fault)
• Assumption of the risk

Question 2

What must D prove to show contributory negligence or comparative fault?

Answer 2

• D has burden of proof to show that P’s conduct was unreasonable and fell below RPP standard.

Question 3

What is the difference between contributory negligence and comparative fault?

Answer 3

• They involve the same analysis, but their legal effects are different depending on the jurisdiction

Question 4

What is the effect of contributory negligence states?

Answer 4

• Any fault by P bars recovery.

Question 5

What is the last clear chance doctrine?

Answer 5

• If D’s negligence occurs after P’s negligence, so that D had the last opportunity to avoid the harm, then P is entitled to full recovery.
• Only applies in context of contributory.

Question 6

What is the effect of comparative fault states?

Answer 6

• P can recover no matter how much P is at fault. Recovery is the amount of damages minus the percentage that P is at fault.
  o EXAMPLE: If P is 80% at fault and suffers $100,000 worth of damages, P will recover $20,000 from negligent D.

Question 7

What is the default negligence defense for the bar exam, contributory negligence or comparative fault?

Answer 7

• Assume pure comparative fault where joint and several liability applies unless told otherwise.
• Joint/several liability applies if there are multiple negligent Ds, and P is also at fault. Subtract out P’s percentage of fault and P can sue one or more Ds to get full remaining amount. If P sues only one D, the D found to be at fault can then seek contribution from the other Ds.

Question 8

What is the result under modified comparative fault jurisdictions?

Answer 8

• P is barred from recovery if P is as much at fault or more at fault than D.
  o EXAMPLE: If P is 60% at fault, P will be barred from recovery. If P is 40% at fault, then P would recover 60% of P’s damages.

Question 9

When does assumption of the risk serve as a defense to negligence?

Answer 9

• P, orally or in writing, relieves D of responsibility to be non-negligent.
  o Typically through a waiver that accompanies athletic activities and recreational sports

Question 10

When would assumption of the risk not be available as a defense to negligence?

Answer 10

• AR is not allowed for necessities. For example, if a LL rents an apartment or a hospital provides care.

Question 11

Is it possible for P to impliedly assume the risk of injury?

Answer 11

• P may impliedly assume the risk. Recovery will be barred or reduced if D establishes that P:
  o Knew of and appreciated the nature of the risk;
  o Appreciated the specific danger that injured P; and
  o Voluntarily chose to subject himself/herself to that danger.
• EXAMPLE: Plato gets in the car with Dickens. Dickens smells of alcohol and there is tequila in the car. Dickens crashes the car and Plato is injured. Dickens can argue that Plato elected to get into a car with a drunk driver and assumed the risk of injury.

Question 12

What is the firefighter rule for negligence cases?

Answer 12

• Where P is a professional rescuer and is injured due to an inherent risk of that job, P cannot recover in negligence against the person who created the need for rescue

Question 13

How is the firefighter rule and the Good Samaritan rule different?

Answer 13

• Good Samaritans may still sue for negligence, though firefighters and other professional rescuers cannot

Question 14

When does primary assumption of the risk come into play?

Answer 14

• In certain contexts, there is no duty to be non-negligent. Often arises in the context of sporting events.
  o EXAMPLE: Percy decides to play basketball and gets tripped and injured by Duncan during the game. If Percy sues Duncan, under primary assumption of the risk, a court would say that an inherent risk is that another player might be negligent. In agreeing to play, Percy has relieved Duncan of the duty to be non-negligent.