Torts

Question 1

Exceptions to contributory-negligence rule

Answer 1

1. When plaintiff’s negligence fails to meet the cause-in-fact or actual cause test.
2. When plaintiff’s negligence fails to meet the proximate cause (foreseeability) test.

Question 2

Last-clear-chance doctrine

When does it apply?

Answer 2

Doctrine allows a plaintiff to recover, despite her contributory negligence, if the defendant had an opportunity to prevent the harm that plaintiff did not have, but defendant did not take advantage of it.
Note: Texas no longer recognizes it as a separate doctrine, but instead treats it as part of comparative negligence

Question 3

Exceptions to contributory-negligence rule:

When defendant’s conduct (3) was:

Answer 3

1. An intentional tort; or
2. Willful and wanton or reckless, unless plaintiff’s own conduct was also willful and wanton or reckless; or
3. Negligence per se (in violation of a statute), unless
   a. The statute was enacted for the sole purpose of protecting a class.

Question 4

Contributory Negligence

Answer 4

Defense completely barring plaintiff from recovering against defendant if plaintiff contributed to her own injuries to any extent whatsoever.
Note: Texas abolished this defense in 1973
In states that recognize this defense, it is a common-law (judge-made) rule.
The defendant has the burden of both pleading this defense in its answer and proving plaintiff’s contributory negligence at trial.
In most states the jury, not the judge, must decide whether or not defendant has met this burden of proof.