Negligence & Strict Liability Defenses

Question 1

Contributory Negligence
Comparative Negligence
Assumption of Risk

Answer 1

Defenses based on P’s conduct

Question 2

Last Clear Chance Doctrine
Immunities
Statutes of Limitations

Answer 2

Defenses based on Statutes or Other Common Law Defenses other than P’s conduct

Question 3

Unreasonable conduct on the part of P which is a factual and proximate cause of P’s harm

Answer 3

Contributory Negligence

Question 4

was a complete bar to recovery no matter how slight the negligence on P’s part; it did not, however, generally bar an action for D’s reckless or intentional conduct

Answer 4

Contributory Negligence

Question 5

A common law doctrine devised to limit the harshness of the contributory negligence
Negligence of P will not bar recovery if D, by the exercise of ordinary care, had the last chance to avoid accident, i.e., D had sufficient time and ability to avoid the accident

Answer 5

Last Clear Chance Doctrine

Question 6

P may recover if P’s percentage of fault is less than D(s) (or, equal to; or, from any D where P’s percentage is less

Answer 6

Modified - Comparative Negligence

Question 7

P may recover to the extent fault is not attributable to P.

Answer 7

Pure - Comparative Negligence

Question 8

Most jurisdictions follow ____ comparative negligence

Answer 8

pure

Question 9

Doctrine of _________ _____ recognizes some unreasonable or worse conduct on the part of all of the parties and compares the nature of the conduct and extent of fault itself.

Answer 9

comparative fault

Question 10

Majority hold that P’s negligence is still a factor where D’s conduct is _________ or is based on strict liability

Answer 10

reckless

Question 11

Requires a showing that P voluntarily consented to a known risk

Answer 11

Assumption of Risk

Question 12

May be express (orally or in writing) or implied (by engaging in activity with a risk.) Implied assumption may be primary or secondary

Answer 12

Assumption of Risk

Question 13

Amounts to relinquishing a right to sue as opposed to acting unreasonably (contributorily negligent)

Answer 13

Assumption of Risk

Question 14

Under comparative negligence, express assumption and implied primary assumption still may bar recovery; implied secondary assumption may only be a partial defense

Answer 14

Assumption of Risk

Question 15

Where P expressly has agreed not to sue D if certain risks cause harm
Usually in the form of a writing, e.g., Exculpatory Clause in Contract; Waiver of Liability; Release of Liability; Waiver and Release; Disclaimers

Answer 15

Express Assumption of Risk:

Question 16

Risk at issue must be the one released
Insufficiently clear or ambiguous language may preclude enforcement
Release otherwise violate public policy
Agreement releasing gross negligence or recklessness
Party seeking enforcement is performing a service of importance to the public and tends to be regulated
Clause is part of an adhesion contract or an unduly oppressive one

Answer 16

Unenforceable Express Assumption of Risk

Question 17

Doctrine used as an alternative to finding that D was not negligent
Risks cannot be eliminated even in the exercise of ordinary care
Lack of duty because either unforeseeable or matter of public policy; or
Because risk necessary for activity to occur, e.g., sports, e.g., many sports facilities could not operate without exculpatory language.

Answer 17

Implied Primary Assumption of Risk

Question 18

P subjectively appreciated the risk
Voluntarily elected to confront it
Manifested a willingness to relieve D of any obligation of care or had no expectation that care would be exercised

Answer 18

Elements of Doctrine

Implied Primary Assumption of Risk

Question 19

Confrontation of a known risk in the absence of reasonable alternatives created by D does not amount to assumption of risk. But, if D is not responsible for lack of alternatives, P may have assumed risks.

Answer 19

Implied Primary Assumption of Risk