Negligence: Defenses (Ch. 8)

Question 1

Contributory Negligence

Answer 1

if plaintiff contributes 1% to his own injury, can’t recover. (This won’t be covered in detail on the test.)

Question 2

Comparative Negligence

Answer 2

reduced by plaintiff’s contribution. This is the #1 Defense for Negligence

Question 3

Assumption of Risk

Answer 3

voluntary undertaking of known danger.

Question 4

Immunity

Answer 4

Absolute defense derived from the defendant’s status (gov’t official) or relationship to the P (spouse).

Question 5

Accrual

Answer 5

Time at which a statute of limitaitons begins to run, usually at the time the P is injured

Question 6

Discretionary Function

Answer 6

Act of a gov’t employee requiring the use of judgment

Question 7

Governmental Function

Answer 7

Tasks typically performed by a governmental entity

Question 8

Last-Clear-Chance Doctine

Answer 8

Allows the P to recover in a contributory neg system despite the P’s negligence
(if the D had a chance that is unavailable to the P to prevent harm that occurs and does not take advantage of it, the D will remain liable despite the P’s contrib neg)

Question 9

Proprietary Function

Answer 9

Function performed by the government that could just as easily be performed by a private entity

Question 10

Statute of Limitations

Answer 10

Statute that limits the time period in which a claim can be filed.

Question 11

Statute of Repose

Answer 11

Statue of Limitations in product liability causes that limits the time period during which a suit can be filed.

Question 12

What defenses to Negligence result in P being barred from recovery?

Answer 12

Contributory Neg
Assumption of Risk (also reduced recovery)
Immunity
Statutes of Limitations or Repose

Question 13

What defenses to Negligence result in reduced recovery for P?

Answer 13

Comparative Negligence

Assumption of Risk (could also bar recovery)

Question 14

What are 3 problems related to Comparative Negligence?

Answer 14

• How is fault assigned, esp when multiple defendants?
• Is the last-clear-chance doctrine applicable?
• Should a neg P’s recovery be reduced if the D was negligent per se?

Question 15

Differences between Assumption of Risk and Contributory Negligence

Answer 15

recklessness vs adventurousness
reasonable person standard vs subjective (did P understand the risk?)
not a defense to reckless conduct vs is a defense for reckless conduct
Not generally a defense in strict liability vs Is a defense in strict liability cases.