Part Five.5: Negligence > Defenses to Negligence

Question 1

In General, what do you need to know as far as defenses to negligence?

Answer 1

1. Contributory Negligence (and last clear chance exception)
2. Assumption of Risk
3. Comparative Negligence

Question 2

What is the rule regarding “Assumption of Risk”?

Answer 2

P may be denied recovery if she assumed the risk of any damage caused by D’s act. (Express or Implied)

P must have:

1. KNOWN the risk; AND
2. VOLUNTARILY PROCEED in the face of the risk

Question 3

May “assumption of risk” be express or implied?

Answer 3

Yes.

1. “Express assumption of risk”
2. “Implied assumption of risk” - Knowledge may be IMPLIED where the risk is one that an average person would clearly appreciate

Question 4

What are the limitations on “Assumption of Risk”?

Answer 4

There is no assumption of risk:

1. if there is no available alternative to proceeding in the fact of the risk, OR
2. in situations involving fraud, force, or an emergency

Question 5

What are the limitations on “Assumption of Risk” related to common carriers and/or public utilities?

Answer 5

Common carriers and public utilities cannot limit their liability by disclaimer

Question 6

What are the limitations on “Assumption of Risk” related to members of a protected class?

Answer 6

Members of a class protected by statute will not be deemed to have assumed any risk

Question 7

Is “Assumption of Risk” a defense to intentional torts?

Answer 7

Assumption of risk is NOT a defense to intentional torts, but it IS a defense to wanton and willful misconduct