Negligence-Defenses to Negligence Flashcards
What are the major defenses to negligence?
1) Contributory negligence
2) Assumption of risk
3) Comparative negligence
What is contributory negligence?
Negligence on the part of the plaintiff that contributes to her injuries.
What is the standard of care for contributory negligence?
Same as for ordinary negligence.
Is contributory negligence a defense to defendant’s violation of a statute?
Yes, unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment.
What if a child is injured after darting into a street in a school zone and is hit by a speeding car? Can the negligence of the child darting into the street constitute contributory negligence as a defense to negligence per se?
No, the child was the type of person the statute (school zone statute) was designed to protect because they lack the capacity and judgment abilities to not dart into the street.
Is contributory negligence a defense for intentional torts?
No.
What is the effect of contributory negligence?
Serves as a complete bar to plaintiff’s recovery under the common law.
What is last clear chance?
Last clear chance permits plaintiff to recover despite her contributory negligence, if the person with the last clear chance to avoid an accident fails to do so and is liable for negligence.
What are the elements of assumption of risk?
Plaintiff must have:
(i) known of the risk; and
(ii) voluntarily proceeded in the fact of the risk.
What is implied assumption of risk?
One in which knowledge of the risk may be implied where the risk is one that an average person would clearly appreciate.
What is comparative negligence?
Plaintiff’s negligence is not a complete bar to recovery but rather the trier of fact weighs plaintiff’s negligence and reduces damages accordingly. Plaintiff, for example, is 10% at fault and her recovery is reduced by 10%.
What do the majority of states follow in regards to comparative negligence?
Partial comparative negligence.
What is partial comparative negligence?
It bars plaintiff’s recover if his negligence was more serious than defendant’s negligence. (e.g. greater than 50%)
What is pure comparative negligence?
Minority position. Allow recovery no matter what percent plaintiff is at fault. (e.g. will still recover even if 99% at fault)
On the MBE assume what applies in terms of comparative negligence?
Pure, unless stated otherwise.
