Negligence: Defenses

Question 1

Three Main Defenses

Answer 1

(1) Contributory Negligence
(2) Comparative Fault
(3) Assumption of Risk

Question 2

Contributory Negligence

Answer 2

If P was negligent in some way, that negligence is a COMPLETE BAR to P’s recovery

Question 3

Contributory Negligence: Last Clear Chance Doctrine

Answer 3

Allows a negligent P to recover upon showing that D had the last clear chance to avoid injuring the P but failed to do so

Question 4

Comparative Fault: Pure Comparative Negligence

Answer 4

P’s recovery is reduced by P’s percentage of fault

Ex: Jordan and Daisy negligently collide, and Jordan sues Daisy. If the jury finds that the plaintiff (Jordan) is 10% at fault and Daisy is 90 % at fault. Jordan will recover only 90% of the judgment that she was not at fault for.

Question 5

Comparative Fault: Partial Comparative Negligence

Answer 5

P LESS at fault than D = P’s recovery reduced by percentage of fault

P MORE at fault than D = P’s recovery barred

P and D EQUALLY at fault = P recover’s 50%

Question 6

Comparative Fault and Intentional Torts

Answer 6

Comparative fault is not a defense to intentional torts

Question 7

Assumption of Risk

Answer 7

When a party KNOWINGLY and WILLINGLY embraces a risk for some purpose of their own

Question 8

Assumption of Risk: Contributory Negligence Jurisdiction

Answer 8

No recovery

Question 9

Assumption of Risk: Comparative Fault Jurisdiction

Answer 9

Reduces recovery

Question 10

Exculpatory Clauses in Contracts

Answer 10

Unenforceable if:

(1) Disclaims liability for reckless or wanton misconduct or gross negligence;
(2) GROSS DISPARITY of bargaining power;
(3) Exculpated party offers SERVICES OF GREAT IMPORTANCE to public;
(4) Subject to typical contractual defenses; or
(5) Against PUBLIC POLICY