Defenses to Negligence

Question 1

Express assumption of the risk

Answer 1

1. Endeavor suitable for public regulation
2. Service of great importance to the public/practical necessity for some
3. Party seeking exculpation holds themselves out as willing to provide the service generally to the public
4. Greatly superior bargaining strength of party seeking exculpation, because the service is so important
5. Adhesion contract
6. Person seeking service must place self under the control of the furnisher of the services

Wagenblast v. Odessa
Turnbough Ladner

Question 2

Elements of Secondary Implied assumption of the risk

Answer 2

1. Knowledge of the risk
2. Appreciation of the nature and extent of the risk
3. Voluntary encountering of the risk

Some jurisdictions
4. objectively unreasonable to accept the risk

Schroyer v. McNeal
Davenport v. Cotton

Question 3

Mitigation of Damages

Answer 3

Duty to minimize damages after being injured

“Fault” approach - Failure to mitigate damages equals fault.
Miller v. Eichhorn

Difference in damages approach - Plaintiff not compensated for portion of damages resulting from failure to minimize damages

Question 4

Immunity Defenses

Answer 4

1. Sovereign Immunity
2. Spousal Immunity
3. Parental Immunity

Question 5

Waiver of (federal) Sovereign Immunity Exemption

Answer 5

discretionary function exemption (DFE) bars suit only if

1. Alleged act involved an element of judgement or choice that was not compelled by statute or regulation AND
2. The judgement or choice must be grounded in considerations of public policy or susceptible to policy analysis.

i.e not laziness or inattentiveness

Question 6

Local/State Immunity

Answer 6

Governmental vs. Proprietary Functions
Government or landlord

Question 7

Spousal Immunity

Question 8

Parental Immunity

Question 9

Statutes of Limitations

Answer 9

1. Accrual
2. Discovery Rule
3. Fraudulent Concealment

Statute of limitations is tolled for minors until 21

Question 10

Fraudulent Concealment

Answer 10

(1) D knew of the alleged wrongful act and concealed it OR had material information D failed to disclose (in the presence of a fiduciary duty to disclose), and

(2) P did not know, or could not have known of cause of action through reasonable diligence, of the cause of action w/in the statutory period

Question 11

Accrual

Answer 11

Barred from suit if the action is filed after the accrual date of cause of action

Question 12

Discovery Rule

Answer 12

Claim starts to accrue when the plaintiff discovers or should have discovered he has a claim.

Question 13

Statue of Repose

Answer 13

Starts when the accident occurs
Usually involves defendants in the construction industry.