Negligence Privileges/Defenses/Damages

Question 1

What is contributory negligence? (MINORITY RULE!!!!!)

Answer 1

negligence of plaintiff leads to complete bar to recovery

doctrine of clean hands - plaintiff must come to court without any negligence to recover (not even 1%)

last clear chance doctrine - if the defendant had opportunity to avoid the accident after plaintiff could no longer avoid, the defendant shall bear the loss

Question 2

What are times where contributory negligence (MINORITY RULE!!!!!) won’t work even if plaintiff was negligent?

Answer 2

(1) defendant engaged in intentional, willful, wanton (intentional torts) or reckless (strict liability) conduct
(2) defendant has special relationship with plaintiff under statute or otherwise has a duty to protect plaintiff from her own risky behavior
(3) defendant or plaintiff has last clear chance to avoid injury

Question 3

What is comparative fault? (MAJORITY RULE!!!!!!!)
list all types

Answer 3

pure - plaintiff’s damages reduced by percentage plaintiff contributed to damages
modified not as great as 49% - plaintiff recover if their negligence does not exceed 49%
modified not greater than 50% - plaintiff can recover if their negligence does not exceed 50%
slight (minority - recovery if negligence is slight compared to defendant’s)

Question 4

What is the duty of avoidable consequences?

Answer 4

plaintiff has a duty ot reasonable care to mitigate damages

Question 5

What is express assumption of risk?

Answer 5

an exculpatory clause is valid if it clearly and specifically indicates the intent to release the defendant from liability caused by negligence

Question 6

What are the exceptions to express assumption of risk?

Answer 6

(1) intentional, willful, wanton, reckless, gross negligence
(2) bargaining power is grossly unequal as to put the other party at the mercy of its negligence
(3) transaction involves the public interest

Question 7

What is implied assumption of the risk? (elements)

Answer 7

subjective knowledge standard that requires
(1) actual knowledge of a particular risk
(2) appreciation of the risk’s magnitude
(3) voluntary encountering the risk (not voluntary if there is no other reasonable course of action)

Question 8

What is a statute of limitations?

Answer 8

complete bar to action if outside the applicable limitations period (variation between states and torts)

most courts hold that for most cases SOL begins to rule when there has been an actual injury to plaintiff

Question 9

What is a statute of repose?

Answer 9

limits potential liability by limiting the time during which a cause of action can arise
(usually for architects and engineers for preventing suits many many years after design)

Question 10

What is a notice of claim statute?

Answer 10

statutes that provide limited waiver of sovereign immunity to allow tort claims against government entities frequently provide that a notice of claim must be filed with the appropriate agency within a particular time frame

Question 11

What are the immunities?

Answer 11

SPEPS JC

spousal
police
employer
parental
sovereign
judicial
charitable

Question 12

What is charitable immunity?

Answer 12

largely abrogated

most charities are large corps and can defend for themselves
some still have for religious institutions

Question 13

What is spousal immunity?

Answer 13

largely abrogated

can’t sue your spouse

Question 14

What is parental immunity?

Answer 14

largely abrogated

not liable for actions taken as a parent

Question 15

What is employer’s immunity?

Answer 15

workers comp statutes in effect in all jurisdictions provide that employees may recover from the employers for workplace injuries

Question 16

What is sovereign immunity?

Answer 16

immunity for ministerial decisions vs discretionary functions

discretionary - decision making authority, where government is acting to establish policy
ministerial - carrying out policies

Question 17

What is judicial immunity?

Answer 17

protects judges, attorneys, witnesses, and court-appointed guardians

does not cover press release statements made outside of litigation

Question 18

What about police immunity?

Answer 18

no liability for a police officer not going above and beyond the call of duty

what would a reasonable police officer do

Question 19

What are negligence damages?

Answer 19

only need to state that some kind of damage occurred

Question 20

What are the 5 approaches to pure emotional distress? (most strict to least strict)

Answer 20

impact rule
zone of danger
dailey rule
thing rule
dillon foreseeability test

Question 21

What is the impact rule?

Answer 21

need contemporaneous physical impact in order to claim emotional distress damages

Question 22

What is the zone of danger rule?

Answer 22

where plaintiff was so close to negligent conduct they narrowly escaped imminent and serious harm to his own physical well-being

Question 23

What is the dailey rule?

Answer 23

can recover with definite and objective physical injury as a result of emotional distress and proximately caused by defendant’s conduct

(hair falling out)

NO eggshell skull applicable - no recovery for hypersensitive people

Question 24

What is the thing rule?

Answer 24

must meet all 3 elements
(1) plaintiff is closely related to the injury victim (marriage, immediate family)
(2) plaintiff is present at the scene of injury and is aware that it is causing injury to the victim
(3) and as a result suffers serious emotional distress, beyond that which would be anticipated in a disinterested witness and is not an abnormal response to the circumstanecs

Question 25

What is the dillon foreseeability test?

Answer 25

similar to thing test but looser multi-factor balancing test
(1) whether plaintiff was near scene of far away
(2) whether the shock was a direct emotional impact from the sensory and contemporaneous observance of the accident, or learning about the accident from others
(3) where plaintiff and victim were closely related