Negligence - Defenses to Negligence

Question 1

What are the defenses to Negligence?

Answer 1

1. Contributory Negligence
2. Comparative Fault
3. Assumption of the Risk
4. Avoidable Consequences

Question 2

On the MBE what is the default ? Contib. neg. or Comp. Fault?

Answer 2

Assume pure comparative fault jurisdiction

• Where J&S liability applies

Question 3

What must be proven for the defense of contributory negligence and comparative fault?

Answer 3

P’s conduct fell below the relevant std. of care and the failure contributed to the P’s injury

Question 4

What is the contributry negligence rule?

Answer 4

Common Law & Handful of States

• P’s contrib. neg. is a complete bar to recovery
• regardless of the percentage that the P’s own neg. contributed to the harm
• NOT a defense to int. tort, gross neg., recklessness

Question 5

What is the last clear chance rule?

Answer 5

Abolished in most jurisdictions comparative fault juris

• In contrib. neg. juris.
  
  • P may mitigate legal effect of his own fault if D had the last clear chance to avoid injuring P but didn’t

Question 6

Last Clear Chance Rule - What is the effect of an inattentive Plaintiff ?

Answer 6

If plaintiff, due to his own contrib. neg. is in peril & he could escape if he were paying attention

• D is liable only if she has actual knowledge of the plaintiff’s inattention

Question 7

What is the legal impact of the P’s negligence in a pure comparative fault jurisdiction?

Answer 7

P’s recovery is reduced based on the percentahe of the plaintiff’s fault

• Can recover no matter the percentage of their fault

Won’t reduce P’s recovery for intentional torts

Question 8

What is the legal impact of a plaintiff’s negligence in a modified comparative fault jurisdiction?

Answer 8

If plaintiff’s fault is greater then 50% P is barred from recovery

• If P is less at fault than D, P’s recovery is reduced by his percentage of fault
• If equally at fault
  
  • Majority - P recovers 50% of his total damages
  • Minority - P recovers nothing

Question 9

What is the legal impact of a plaintiff’s negligence in a comparative fault juris. when there are multiple defendants?

Answer 9

D’s are joint & severally liable for the reduced percentage of fault

Question 10

What is assumption of the risk?

Answer 10

Trad - Unreas. proceeding in the face of known, specific risk bars recovery

Contrib. Neg. Juris. - NO recovery

Compar. Fault Juris. - Reduced recovery

Question 11

Assumption of the Risk - Exculpatory clauses in contracts

Answer 11

Parties can K to disclaim liability for negligence. BUT Unenforceable if:

1. Disclaims liab. for reckless or wanton misconduct or gross negligence
2. Gross disparity of bargaining power
3. exculpated party offers services of great importance or practical nec. to the public.
4. Subject to typical contractual defenses OR
5. Against public policy

Question 12

Generally, who can not disclaim liability for negligence?

Answer 12

• Common Carriers
• Innkeepers
• employers

Question 13

When does express assumption of the risk usually arise?

Answer 13

Written waivers in recreational activities and sports

Question 14

When does an express assumption of the risk exist?

Answer 14

When P by written or oral words relieves D of their responsibility to act non-negligently towards the D

Question 15

Whats is the consequence of a valid express assumption on a tort action?

Answer 15

It bars recovery

Question 16

What are the elements of a valid express assumptions of risk that will bar recovery ?

Answer 16

1. Exp. assumption lang. is clear
2. D’s conduct is no more culpable than neg. (can’t be intentional)
3. Waiver is not void against pub. policy

Question 17

When has a Plaintiff impliedly assumed the risk?

Answer 17

1. P had knowledge of the danger
2. P appreciated the nature of the danger AND
3. P vol. chose to expose himself to that risk

Question 18

From what point of view is assumption of the risk evaluated? Subjective or Objective?

Answer 18

Subjective focus on the mind of the Plaintiff

Question 19

What is a plaintiff’s duty to avoid cnsequences?

Answer 19

P has no oblig. to take reas. steps after being injured not to increase the injury

Question 20

What is the impact of a plaintiff not avoiding consequences ?

Answer 20

D is not liable for further damages caused by plaintiff’s failure to avoid consequences

Question 21

The doctrine of avoidable consequences only applies to bar recovery from?

Answer 21

The defendant for damages that were avoidable to the P