Plaintiff's fault

Question 1

Last clear chance

Answer 1

In contributory negligence jurisdictions, a plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.

If the defendant had the last clear chance, she is liable for all of the plaintiff’s damages.

The doctrine has been abolished in most comparative fault jurisdictions.

Question 2

Comparative fault

Answer 2

The default rule on the MBE, unless otherwise specified.

Once a plaintiff’s full damages are calculated, they are then reduced by the portion that the plaintiff’s fault bears to the total harm.

Question 3

Causation

Answer 3

To bar recovery under contributory negligence, the plaintiff’s own negligence must have caused the accident.

Question 4

Duty to mitigate

Answer 4

A plaintiff must take reasonable steps to mitigate damages.

In a comparative negligence jurisdiction, the failure to mitigate is taken into account, but does not categorically prevent recovery for such harm

Question 5

Assumption of risk

Answer 5

Traditionally a plaintiff’s voluntarily encountering a known, specific risk is an affirmative defense to negligence that affects recovery.

Most courts recognizing this defense also hold that the voluntary encounter of the risk must be unreasonable.

Professional role or specialty training (e.g., as a medical provider) may bear on assumption of risk.

In most comparative-fault jurisdictions, this form of assumption of the risk merely reduces recovery.