Torts 5--Defenses

Question 1

What are the defenses to Negligence?

Answer 1

contributory negligence standard of care for contributory negligence.

Torts>Defenses to Negligence

Question 2

What does contributory negligence consist of?

Answer 2

standard of care for contributory negligence, avoidable consequences distinguished, no defense to intentional torts, effect of contributory negligence, last clear chance, imputed contributory negligence.

Torts>Defenses to Negligence>contributory negligence

Question 3

What is the standard of care for contributory negligence?

Answer 3

1) General Rule The standard of care required is the same as that for ordinary negligence. 2) Rescuers A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff’s conduct. 3) Remaining in Danger It may be contributorily negligent to fail to remove oneself from danger, e.g., remaining in a car with a drunk driver. 4) Violation of Statute by Plaintiff Plaintiff’s contributory negligence may be established by his violation of a statute under the same rules that govern whether a statute can establish defendant’s negligence. 5) As Defense to Violation of Statute by Defendant Contributory negligence is ordinarily a defense to negligence proved by defendant’s violation of an applicable statute. But where the defendant’s negligence arose from violation of a statute designed to protect this particular class of plaintiffs from their own incapacity and lack of judgment, then plaintiff’s contributory negligence is not a defense.

Torts>Defenses to Negligencecontributory negligence> standard of care for contributory negligence.

Question 4

What is the General Rule for the standard of care Defenses to Contributory Negligence?

Answer 4

The standard of care required is the same as that for ordinary negligence. The reasonable, ordinary, prudent person.

Torts> Negligence> Defenses To Negligence> Contributory Negligence> Standard of Care for Contributory Negligence> General Rule

Question 5

What is the defense standard of care for rescuers can take when attempting to rescue?

Answer 5

A Plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff’s conduct.

Torts> Negligence> Defenses To Negligence> Contributory Negligence> Standard of Care for Contributory Negligence> Rescuers

Question 6

What is the standard of care for contributory negligence while remaining in danger?

Answer 6

It may be contributorily negligent to fail to remove oneself from danger., e.g. remaining in a car with a drunk driver.

Torts> Negligence> Defenses To Negligence> Contributory Negligence> Standard of Care for Contributory Negligence> Remaining in Danger

Question 7

Can a plaintiff’s contributory negligence be established by his violation of a statute?

Answer 7

Yes. Plaintiff’s contributory negligence may be established by his violation of a statute under the same rules that govern whether a statute can establish defendant’s negligence. (See B.3.e.)

Torts>Defenses to Negligence>Violation of Statute by Plaintiff

Question 8

When is the plaintiff’s contributory negligence not a defense?

Answer 8

Contributory negligence is ordinarily a defense to negligence proved by defendant’s violation of an applicable statute. But where the defendant’s negligence arose from violation of a statute designed to protect this particular class of plaintiffs from their own incapacity and lack of judgement, then plaintiff’s contributory negligence is not a defense.

Torts>Defenses to Negligence>As Defense to Violation of Statute by Defendant

Question 9

Is a failure to mitigate damages considered contributory negligence or avoid consequences?

Answer 9

Avoidable consequences. While plaintiffs owe a duty to mitigate damages to a person or property after the damages is inflicted, if he does not do so, damages will be reduced. However, this is not considered contributory negligence.

Torts>Defenses to Negligence>Avoidable Consequences Distinguished

Question 10

What is considered Helpless Peril?

Answer 10

Helpless peril exists where plaintiff, through his contributory negligence, puts himself in a position of actual peril from which he cannot extricate himself. In many states, defendant is liable under these circumstances if she had either actual knowledge of plaintiff’s predicament or if she should have known of plaintiff’s predicament. Other states require actual knowledge.

Torts>Defenses>Contributory Negligence>Last Clear Chance>Helpless Peril

Question 11

What is considered Inattentive Peril?

Answer 11

Inattentive peril exists where plaintiff, through his own negligence, is in a position of actual peril from which he could extricate himself if he were attentive. Almost all courts require actual knowledge of plaintiff’s predica- ment on defendant’s part.

Torts>Defenses>Contributory Negligence>Last Clear Chance> Inattentive Peril

Question 12

When can a defendant’s prior negligence serve as a defense to the Last Clear Chance Doctrine?

Answer 12

For last clear chance to operate, defendant must have been able to avoid harming plaintiff at the time of the accident. In short, defendant must have had the “last clear chance” to avoid the accident. Hence, if defendant’s only negligence had occurred earlier, e.g., she negligently failed to have the steering wheel fixed, the courts will not apply last clear chance.

Torts>Defenses To Negligence>Contributory Negligence>Last Clear Chance>Prior Negligence Cases

Question 13

What is imputed contributory negligence?

Answer 13

Driver and Passenger are involved in an automobile accident with Cyclist. Driver is negligent; Cyclist is also negligent. Passenger, who is injured, brings an action against Cyclist. Cyclist argues that liability should be denied because of Driver’s negligence to the same extent as if the Passenger had been negligent himself. This is the concept of “imputed contributory negligence.”

Torts>Defenses To Negligence>Contributory Negligence>Implied Contributory Negligence

Question 14

When may a plaintiff proceed against both negligent parties under the theory of imputed contributory negligence?

Answer 14

As a general rule, a plaintiff’s action for his damages is not barred by imputed contributory negligence. He may proceed against both negligent parties as joint tortfeasors to the extent that each is a legal cause of the harm.

Torts>Defenses To Negligence>Contributory Negligence>Implied Contributory Negligence>General Rule-Plaintiff May Proceed Against Both Negligent Parties

Question 15

What is contributory negligence imputed?

Answer 15

Contributory negligence will be imputed only where the plaintiff and the negligent person stand in such a relationship to each other that the courts find it proper to charge plaintiff with that person’s negligence, i.e., where plaintiff would be found vicariously liable for the negligent person’s conduct if a third party had brought the action.

Torts>Defenses to Negligence>Contributory Negligence>Imputed Contributory Negligence>When Contributory Negligence is Computed

Question 16

How is contributory negligence imputed when the dispute is between an employer and employee?

Answer 16

The contributory negligence of the employee or agent acting within the scope of employment will be imputed to the employer or principal when the latter is a plaintiff suing a third person.

Torts>Defenses to Negligence>Contributory Negligence>Imputed Contributory Negligence>Common Fact Situations>Employer and Employee

Question 17

What effect does contributory negligence have on partners and joint ventures?

Answer 17

The contributory negligence of one partner or joint venturer will be imputed to the other when the other is a plaintiff suing a third person.

Torts>Defenses to Negligence>Contributory Negligence>Imputed Contributory Negligence>Common Fact Situations>Partners and Joint Ventures

Question 18

What effect does contributory negligence have on spouses?

Answer 18

The contributory negligence of one spouse will not be imputed to the other when the other is a plaintiff suing a third person.

Torts>Defenses to Negligence>Contributory Negligence>Imputed Contributory Negligence>Common Fact Situations>Husband and Wife

Question 19

Is contributory negligence a defense to an intentional tort?

Answer 19

No, Contributory negligence is never a defense to an action for an intentional tort or for willful or wanton misconduct.

Torts>Defenses to Negligence>No Defense to Intentional Torts

Question 20

What is the effect of contributory negligence in common law?

Answer 20

Contributory negligence would completely bar the right to recovery in common law.

Torts>Defenses to Negligence>Effect of Contributory Negligence

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Question 21

What is the last clear chance doctrine?

Answer 21

This is a rebuttal to the defense of contributory negligence. This allows a plaintiff to recover despite the existence of their own contributory negligence. The person who had the “last clear chance” to avoid an accident and failed to do so is liable for negligence.

Question 22

What effect does contributory negligence have on a parent and child?

Answer 22

The contributory negligence of a parent/guardian is not imputed to the child, nor is the contributory negligence of the child imputed to the parent in actions against a third party.

Torts>Defenses to Negligence>Contributory Negligence>Imputed Contributory Negligence>Common Fact Situations>Parent and Child

Question 23

Where may knowledge be implied?

Answer 23

where the risk is one that the average person would clearly appreciate/know beforehand.

Torts>Defenses to Negligence>Assumption of risk>Implied Assumption of Risk>Knowledge of Risk

Question 24

When can a plaintiff not be considered to assume the risk?

Answer 24

where there is no available alternative to
proceeding in the face of the risk, e.g., the only exit from a building is unsafe.

Torts>Defenses to Negligence>Assumption of risk>Implied Assumption of Risk>Voluntary Assumption

Question 25

What risks may not be assumed, according to the courts? (3)

Answer 25

1) When common carriers and public utilities use disclaimers, 2) When a class is protected by statute, 3) Situations involving fraud, force, or an emergency

Torts>Defenses to Negligence>Assumption of risk>Implied Assumption of Risk>Certain Risks May Not Be Assumed

Question 26

How may a plaintiff expressly assume risk?

Answer 26

By express agreement—such exculpatory clauses in a contract that are intended to insulate one of the parties from liability resulting from his own negligence are closely scrutinized but generally enforceable.

Torts>Defenses to Negligence>
Assumption of Risk>Express
Assumption

Question 27

Is assumption of risk a defense to intentional torts?

Answer 27

No. It is, however, a defense to wanton or reckless conduct.

Torts>Defenses to Negligence>
Assumption of Risk>Intentional
Torts

Question 28

What does comparative negligence allow and how is it weighed if it is shown?

Answer 28

A majority of states permit a contributorily negligent plaintiff to recover a percentage of his damages under some type of comparative negligence system. The trier of fact weighs the plaintiff’s negligence against the defendant’s and reduces plaintiff’s damages accordingly.

Torts>Defenses to Negligence>
Comparative Negligence

Question 29

Comparative Negligence means comparing the plaintiff’s negligence against the defendant’s and reducing the judgement accordingly. What are the 2 main types of comparative negligence?

Answer 29

The two main types of comparative negligence are:
1. partial comparative negligence: compares negligence “partially”/up to a point. If plaintiff passes the threshold (usually 50 or 50.1% negligent, they recover NOTHING)
2. pure comparative negligence:
comparison of who was negligent. Only looks at negligence, not whether P passed a certain negligence threshold. If P was 99% negligent they can still recover 1% of the judgement because this is “purely” concerned about comparing the negligence of the parties

Torts>Defenses to negligence >comparative negligence

Question 30

Partial Comparative Negligence Rule

Answer 30

Bars P’s recovery if P’s negligence passes a certain level.
Some states = P is barred if their “part” of the negligence is MORE SERIOUS compared to defendant’s (P= more than 50% at fault)
Other states= P barred if their negligence is AS SERIOUS as D (P is 50% or more at fault)

Torts>Defenses to negligence >comparative negligence types

Question 31

Pure Comparative Negligence Rule

Answer 31

Allows recovery by Plaintiff no matter how great P’s negligence is in comparison to D’s. So P could be 99% negligent and still recover 1% of the judgement.

Torts>Defenses to negligence >comparative negligence types

Question 32

Partial Comparative Negligence Rule: Multiple Defendants

Answer 32

Partial comparative negligence rule = bar P’s recovery if they are as or more negligent than the defendant.

The MULTIPLE defendant rule applies in most states: if compare P’s negligence to the TOTAL negligence of all defendants combined

Torts>Defenses to negligence >comparative negligence types

Question 33

What is Pure Comparative Negligence?

Answer 33

The “pure” variety of comparative negligence, adopted in a third of the comparative negligence states, allows recovery no matter how great plaintiff’s negligence is
(e.g., if plaintiff is 90% at fault and defendant 10%, plaintiff may still recover 10%
of his damages). On the MBE, pure comparative negligence is the applicable rule
unless the question specifies otherwise

Torts>Defenses of Negligence>Comparative Negligence>Pure Comparative Negligence Jurisdiction

Question 34

Partial Comparative Negligence Jurisdiction—Single Defendant Illustration

Answer 34

Plaintiff is 30% negligent and Defendant is 70% negligent in causing the accident. Each party suffers $100,000 in damages. Plaintiff will recover $70,000 from Defendant—$100,000 minus 30% ($30,000). Defendant will recover nothing from Plaintiff because Defendant was more than 50% at fault.

Torts>Defenses of Negligence>Comparative Negligence Illustrations> Partial Comparative Negligence Jurisdiction—Single Defendant

Question 35

Partial Comparative Negligence Jurisdiction—Multi Defendant Illustration

Answer 35

Plaintiff is 40% negligent in causing the accident and suffers $100,000 in damages. D1 is 35% negligent and D2 is 25% negligent. Plaintiff can recover $60,000 from either D1 or D2 under joint and several liability rules . Note that if D1 or D2 also suffered damages, each of them would have a claim against the other two negligent parties because each one’s negligence is less than the total negligence of the other two.

Torts>Defenses of Negligence>Comparative Negligence Illustrations> Partial Comparative Negligence Jurisdiction— Multiple Defendant

Question 36

What is the airspeed velocity of an unladen swallow?

Answer 36

It depends on whether the swallow is a European swallow or an African swalllow.

Torts>Duty>To whom owed>foreseeable plaintiffs

Question 37

What is an example of how a partial comparative negligence jurisdiction would assess damages in a case with multiple defendants?

Answer 37

Plaintiff is 40% negligent in causing the accident and suffers $100,000 in damages. D1 is 35% negligent and D2 is 25% negligent. Plaintiff can recover $60,000 from
either D1 or D2 under joint and several liability rules . Note that if D1 or D2 also suffered damages, each of them would have a claim against the other two negligent
parties because each one’s negligence is less than the total negligence of the other two.

Torts>Defenses to Negligence>Comparative Negligence Illustrations>Partial Comparative Negligence Jurisdiction>Multiple Defendants

Question 38

What is an example of how a pure comparative negligence jurisdiction would assess damages?

Answer 38

Plaintiff is 30% negligent and Defendant is 70% negligent in causing the accident. Each party suffers $100,000 in damages. Plaintiff has a right to recover $70,000 from
Defendant, and Defendant has a right to recover $30,000 from Plaintiff. Defendant’s damages will be offset against Plaintiff’s damages, and Plaintiff will have a net recovery of $40,000.

Torts>Defenses to Negligence>Comparative Negligence Illustrations>Pure Comparative Negligence Jurisdiction

Question 39

When is last clear chance used in comparative negligence jurisdictions?

Answer 39

It is NOT used in most comparativce negligence jurisdictions

Torts>Defenses to Negligence>Effect on Other Doctrines>Last Clear Chance

Question 40

Have most comparative negligence jurisdictions abolished entirely the defense of implied assumption of risk?

Answer 40

Yes

Torts>Negligence>Defenses to Negligence>Comparative Negligence>Effect on Other Doctrines>Assumption of Risk>Implied Assumption of Risk

Question 41

In jurisdictions that have abolished thh implied assumption of risk, traditional assumption of risk situations must be broken into the following categories:

Answer 41

1) When the defendant has only a limited duty to the plaintiff because of plaintiff’s knowledge of the risks;
2) Situation that is a variant of contributory negligence - defendant’s initial breach of duty to plaintiff is superseded by plaintiff’s assumption of risk. Reasonableness of plaintiff’s conduct is relevant. If the plaintiff behaved unreasonably, plaintiff is contributorily negligence and damages will be apportioned under the state’s comparative negligence statute

Torts>Negligence>Defenses to Negligence>Comparative Negligence>Effect on Other Doctrines>Assumption of Risk>Implied Assumption of Risk

Question 42

Do most comparative negligence jurisdicitions retain the defense of express asssumption of risk?

Answer 42

Yes

Torts>Negligence>Defenses to Negligence>Comparative Negligence>Effect on Other Doctrines>Assumption of Risk>Express Assumption of Risk

Question 43

In most comparative negligence jurisdicitions, will plaintiff’s negligence be taken into account even though the defendant’s conduct was “wanton and willful” or “reckless”?

Answer 43

Yes, however, plaintiff’s negligence is still not a defense to intentional tortious conduct by the defendant.

Torts>Negligence>Defenses to Negligence>Comparative Negligence>Effect on Other Doctrines>Assumption of Risk>Express Assumption of Risk>Wanton and Willful Conduct