Negligence Defenses

Question 1

Contributory Negligence

Answer 1

ANY negligence by P results in total bar to recovery

Question 2

Comparative Negligence

Answer 2

negligence by P results in reduced recover (may totally bar recovery)

Question 3

Types of Assumption of Risk

Answer 3

**mostly abandoned
express v implied

Question 4

Types of Immunities

Answer 4

judicial proceedings, employer, families, charities, governments, tribes, public officers

Question 5

Pure Comparative Negligence

Answer 5

No threshold; % of fault reduces

Question 6

Comp Neg. 50% allowed rule

Answer 6

allows P to be negligent up to 50% while still obtaining relief
majority
“is not greater than”

Question 7

Comp Neg. 50% bar rule

Answer 7

“is less than”

Question 8

Express Assumption of Risk

Answer 8

requires explicit agreement in words assuming the risk
written or oral
majority

Question 9

Implied Assumption of Risk

Answer 9

by conduct or actions, P shows assumed risk
minority

Question 10

Assumption of Risk Elements

Answer 10

1. Knowledge - P knows and appreciates the risk, including its nature and severity (subj)(requires actual knowledge)
2. Voluntariness - P takes on risk in an entirely voluntary way

Question 11

Statute of limitations

Answer 11

cause of action accrues when the P discovered or should have discovered the negligently inflicted injury rather than at the time of the injury.

Question 12

Interspousal Immunity

Answer 12

immunity between spouses
no longer recognized in Washington

Question 13

Parental Immunity

Answer 13

immunity of parents when acting in thir capacity as a parent
WA has retained parental immunity when the case arises out of negligent supervision by a stepparent after having previously abandoned it

Question 14

Charitable Immunity

Answer 14

no longer recognized in most jurisdictions

Question 15

Sovereign Immunity

Answer 15

Federal government is immune from suit (subject to exceptions)

Question 16

Discretionary Function Exception

Answer 16

shields the gov from liability when the actions taken were:
1) discretionary and
2) the judgment involved “is of the kind that the DFE was designed to shield,”

Question 17

Tribal Sovereign Immunity

Answer 17

Native American tribesare generally entitled to immunity just like any other sovereign, but they too have waived their immunity under certain circumstances.

Question 18

Public Officers

Answer 18

A public official may be shielded from liability if the officials conduct comes within common law official immunity

Question 19

rebuttal defenses

Answer 19

• burden of proof stays w P
• a successful rebuttal of any part of a P’s claim results in a victory for the D

Question 20

affirmative defenses

Answer 20

• burden of proof shifts to D
• only applicable after P proves prima facie case
• three major defenses

Question 21

lack of clear chance rule

Answer 21

where chronology matters, defense must take last chance to avoid

Question 22

very young P’s

Answer 22

n/a in cases of intentional or willful, wanton or reckless negligence

Question 23

mental impairments

Answer 23

SOC may be lowered when applied to P’s = no bar

Question 24

negligence per se

Answer 24

persons whom statute protects impervious to contributory negligence