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Question 1

How can an emergency be an exception to contributory negligence?

Answer 1

If you act in response to an emergency or rescue someone in danger, you can’t be charged with contributory negligence unless you act recklessly

Question 2

Can emergency be an exception to contributory negligence if the emergency was of your own making?

Answer 2

No

Question 3

What is the rationale for emergency being an exception to contributory negligence with regard to rescue?

Answer 3

Rescue is foreseeable, so a rescuer can recover from the defendant whose negligence prompted the rescue if he had a reasonable belief the plaintiff was in peril

Question 4

How is the last clear chance doctrine an exception to contributory negligence?

Answer 4

This doctrine saves the contributorily negligent plaintiff by putting the entire burden of loss on the defendant

Question 5

What type of law follows the last clear chance doctrine?

Answer 5

Common law

Question 6

If your truck breaks down and you pull to the side of the road, but your bumper negligently protrudes and another person that is negligently driving too fast doesn’t see it and hits you, can you argue last clear chance?

Answer 6

Yes, you can argue that the other person had the last clear chance to apply the brakes

Question 7

How does last clear chance soften the complete defense of contributory negligence?

Answer 7

It allows the negligent plaintiff a full recovery if he is left in a helpless position by his own negligence and someone else has the last clear chance to avoid injury, but negligently inflicted it anyway after discovering his peril

Question 8

Can the last clear chance doctrine apply if the defendant didn’t discover the plaintiff’s peril but should have?

Answer 8

Yes

Question 9

Essentially the last clear chance doctrine means that the court ignores the plaintiff’s contributory negligence if what?

Answer 9

The defendant’s negligence occurred after the plaintiff’s

Question 10

Who is the person responsible in a last clear chance situation?

Answer 10

The person with the last clear chance to avoid the accident

Question 11

Is the last clear chance doctrine often followed today?

Answer 11

No, it is in major disfavor

Question 12

If an exam question asks about the best choice to relieve defendant of liability and offers last clear chance as a pick, should that be the answer?

Answer 12

No, because this doesn’t relieve defendant of liability, it relieves the plaintiff of the effect of contributory negligence, and actually makes the defendant liable if it applies

Question 13

What are the two positions for last clear chance?

Answer 13

• majority: not applicable if defendant didn’t know plaintiff was in peril
• minority: applies anytime defendant should know of plaintiff’s peril

Question 14

What are the different types of peril that apply to the minority position for the last clear chance doctrine?

Answer 14

Helpless peril and inattentive peril

Question 15

What is helpless peril under the last clear chance doctrine?

Answer 15

Plaintiff put himself in a position of danger but was powerless to get himself out of it, so the only way to avert the peril was for defendant to act

Question 16

If P found himself in a situation of helpless peril, can he recover under the last clear chance doctrine?

Answer 16

Usually he can, if defendant had actual knowledge of plaintiff’s peril or should have had it and was then negligent

Question 17

If the plaintiff carelessly runs across a busy street and falls and breaks his ankle, and is then run over by a negligently careless driver, can he use the last clear chance doctrine to get recovery?

Answer 17

Yes, because he would be considered someone in helpless peril

Question 18

What is inattentive peril under the minority view of last clear chance doctrine?

Answer 18

Plaintiff puts himself in a situation of peril, but could’ve gotten himself out of it by using reasonable care, but didn’t because he wasn’t aware of the harm that was about to happen from the defendant

Question 19

What is an example of inattentive peril for last clear chance doctrine?

Answer 19

Crossing a street without looking

Question 20

What is required for the plaintiff to get recovery in an inattentive peril situation under the last clear chance doctrine?

Answer 20

Defendant must have had actual knowledge of plaintiff’s presence in time to avoid the accident

Question 21

What are the three major situations that imputed contributory negligence applies?

Answer 21

• master-servant
• joint enterprise
• injury to someone else

Question 22

How can imputed contributory negligence apply to a master/servant situation?

Answer 22

A servant’s negligence can be imputed to the master. Ie: chauffeur

Question 23

How can imputed contributory negligence happen in a situation where you injure someone else?

Answer 23

Things like loss of consortium, bystander emotional distress, etc.

Question 24

How do most courts deal with contributory negligence nowadays?

Answer 24

Almost all states reject it as being a complete defense

Question 25

What is “assumption of the risk” as a defense to negligence?

Answer 25

Expressly or impliedly voluntarily consenting to undergo a risk created by defendant’s conduct that completely bars plaintiff from recovery

Question 26

In order for assumption of the risk to apply, what are the two things that have to happen?

Answer 26

• Plaintiff must fully understand the risk of harm

- Plaintiff must voluntarily choose to remain within the area of risk showing a willingness to accept it

Question 27

What is the majority trend for assumption of the risk?

Answer 27

To merge it into comparative negligence

Question 28

What is essential for assumption of the risk?

Answer 28

Consent to the risk of harm (heedlessness or indifference is not enough)

Question 29

If a person has no reasonable alternative, has he assumed the risk?

Answer 29

No, if the decision came because of necessity, force, or fraud, there’s no assumption of the risk

Question 30

If you dash into a dangerous situation to save your own property, is that assumption of the risk?

Answer 30

Not unless the risk was out of all proportion to the value of the interest being protected

Question 31

When is assumption of the risk usually seen?

Answer 31

In recreational sports or when plaintiff agrees to engage in an activity knowing there are risks but he does it anyway

Question 32

How do you discuss assumption of the risk on an essay?

Answer 32

First show the defendant was negligent, then argue for the defense

Question 33

Companies that furnish public services are usually not allowed to claim what?

Answer 33

That a member of the public assumed the risk in seeking to use those services

Question 34

If you board a public bus knowing the driver is drunk, can your recovery be denied because of assumption of the risk?

Answer 34

No, because that would go against public policy

Question 35

If you encounter an oil spill on the road, and taking a detour will mean you will be late to work, so you drive through and cause injury, what is the essential question that has to be answered here to determine assumption of the risk?

Answer 35

Whether or not there were reasonable alternatives to driving through, so balancing of the harm threatened by the delay and losing your job versus the harm you exposed yourself to

Question 36

What are the two different types of assumption of the risk?

Answer 36

Express and implied

Question 37

What is express assumption of the risk?

Answer 37

Explicitly agreeing to relieve defendant of his obligation to be nonnegligent toward plaintiff by stating you know the risk and accept it

Question 38

When do you often see express assumption of the risk?

Answer 38

Skydiving or white water rafting waivers

Question 39

Express assumption of the risk waivers are valid so long as what?

Answer 39

The language is clear and properly drafted

Question 40

If D’s conduct is more culpable than negligence, can an express waiver for assumption of the risk still apply?

Answer 40

No

Question 41

What is implied assumption of the risk?

Answer 41

A manifestation of plaintiff’s willingness to relieve defendant of liability for his negligence, usually shown by conduct

Question 42

What is the easiest way to prove implied assumption of the risk?

Answer 42

If the plaintiff continued in the face of a known danger

Question 43

If your coworker picks you up from work obviously drunk, and you get in the car and there’s an accident, have you consented to the risk?

Answer 43

Yes because you voluntarily got into the car when you knew and comprehended the risk, but if you weren’t able to realize the risk, then you didn’t assume it

Question 44

What are the three elements of assumption of the risk?

Answer 44

• plaintiff knew of the risk
• comprehended the risk
• voluntarily elected to expose himself to the risk

Question 45

What are exceptions to contributory negligence?

Answer 45

Impotent PRIKER

• IMPUTED AoR
• discovered PERIL
• RECKLESSNESS
• INTENTIONAL misconduct
• KIDS
• EMERGENCY
• RESCUE
• Last Clear Chance