Questions and Answers
Which of the following are defenses to negligence? (Select all that apply)
What is Contributory Negligence?
Plaintiff's failure to use the relevant degree of care for his or her own safety
If contributory negligence is found, can the plaintiff recover?
False
What is 'last clear chance' regarding contributory negligence?
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What is Assumption of the Risk?
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What are the two kinds of Assumption of the Risk?
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If Assumption of the Risk is found, will the plaintiff recover?
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What is the test for Implied Assumption of the Risk?
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What are two situations that destroy the voluntariness requirement of Implied Assumption of the Risk?
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What is Comparative Negligence?
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What are the two types of Comparative Negligence?
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If a jury finds the plaintiff 70% at fault and the defendant 30%, what are the outcomes under both types of Comparative Negligence?
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In jurisdictions with Comparative Negligence, does it replace other defenses?
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In partial comparative negligence jurisdictions, with many defendants, how is the plaintiff's negligence compared?
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Can the plaintiff employ the last clear chance doctrine if the defendant's negligence occurred prior to the accident?
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Under what condition will the defendant be liable if the plaintiff has placed himself in inattentive peril?
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What situation requires consideration of the reasonableness of the plaintiff's conduct in comparative negligence jurisdictions?
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What is the collateral source rule?
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Study Notes
Defenses to Negligence
- Three main defenses: Contributory Negligence, Assumption of the Risk, Comparative Negligence.
Contributory Negligence
- Defined as the plaintiff's failure to exercise reasonable care for personal safety.
- A complete bar to recovery for the plaintiff if found contributory negligent.
- "Last clear chance" doctrine applies if the defendant had an opportunity to avoid the accident after the plaintiff's negligence.
Assumption of the Risk
- Occurs when the plaintiff voluntarily accepts the risks associated with an activity.
- Two types:
- Express Assumption: clear acceptance of risk via words (e.g., "I'll take my chances").
- Implied Assumption: inferred from actions and circumstances.
- If assumption of risk is established, recovery is completely barred unless it violates public policy (e.g., waivers for negligent medical care).
Implied Assumption of the Risk
- Test includes:
- Plaintiff must know of the risk.
- Encountering the risk must be voluntary.
- Situations that negate voluntariness:
- No alternative available.
- Involvement in an emergency situation.
Comparative Negligence
- Allows for some recovery if the plaintiff is partly negligent, differentiating from total bar in contributory negligence.
- Two types:
- Pure Comparative Negligence: plaintiff recovers a percentage regardless of higher fault.
- Modified (Partial) Comparative Negligence: recovery until plaintiff is over 50% responsible, then barred.
Recovery Examples
- In a scenario where the plaintiff is found 70% at fault:
- Pure Comparative Negligence allows for 30% recovery.
- Modified Comparative Negligence results in no recovery.
Interaction with Other Defenses
- Comparative Negligence replaces Contributory Negligence and Implied Assumption of Risk but does not affect Express Assumption of the Risk.
Multiple Defendants Scenario
- In partial comparative negligence jurisdictions, the plaintiff’s negligence is assessed against the total negligence of all defendants collectively.
Last Clear Chance Doctrine
- Inapplicable if the defendant's negligence occurred prior to the accident.
Liability in Inattentive Peril
- Defendant may be liable if aware of the plaintiff's inattentive peril from which the plaintiff could escape.
Reasonableness of Plaintiff's Conduct
- Evaluated when plaintiff's assumption of risk supersedes the defendant's initial negligence.
Collateral Source Rule
- Generally allows plaintiffs to recover damages from insurance or other sources even if compensated, though some states may modify this rule by statute.
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Description
Test your understanding of the main defenses to negligence, including Contributory Negligence, Assumption of the Risk, and Comparative Negligence. This quiz will help you navigate complex legal concepts and their applications in personal injury law.