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Question 1

For assumption of the risk, what does it mean that the plaintiff comprehended the risk?

Answer 1

He understood the magnitude and its implications

Question 2

Sometimes a risk is so obvious that any competent adult is expected to what?

Answer 2

Be aware of it, like slipping on ice

Question 3

What does primary assumption of the risk do?

Answer 3

Means the defendant didn’t owe a duty or breach one, and was not negligent

Question 4

If you go to a baseball game and get hit by a ball, was there a breach so that you can recover for your injuries?

Answer 4

No, because you assumed the risk under a primary assumption of the risk

Question 5

How can you assume the risk by agreement?

Answer 5

Through exculpatory clauses when the relationship is contractual, you can limit liability in advance

Question 6

Does an exculpatory clause always amount to assumption of the risk, so that it bars recovery?

Answer 6

Recovery depends on the enforceability of the provisions according to contract and tort law

Question 7

In order for an exculpatory provision to be an assumption of the risk, what needs to be present?

Answer 7

It must be written in large type or have signs that call attention to it, and must be within the scope of the contract.

Question 8

If the parties are in unequal bargaining positions, and an exculpatory clause is included, what is usually the finding on that?

Answer 8

The clause is usually held invalid

Question 9

How are releases treated at common-law and modern law?

Answer 9

• CL: if plaintiff settles with one tortfeasor, that is a release for all others
• modern: plaintiff can settle with one tortfeasor and expressly reserve a right to proceed against others

Question 10

Are pre-injury releases usually upheld?

Answer 10

Not usually if a child is involved, but usually adults are upheld as long as they’re clear and unambiguous

Question 11

If a co-participant in a sport acts within the range of ordinary behavior for that sport, is his conduct a breach of duty?

Answer 11

No

Question 12

What must be found to recover for negligence in athletics?

Answer 12

Reckless disregard for safety

Question 13

If you play a sport, you assume the risks that what?

Answer 13

Are inherent in the activity

Question 14

What approach is comparative negligence?

Answer 14

Majority approach that is adopted by virtually all states

Question 15

What is comparative negligence?

Answer 15

Plaintiff’s conduct that falls below the standard of conduct he should conform to for his own protection is a partial bar to recovery, and reduces his recovery by the percentage he is responsible for his own injury

Question 16

Who determines the percentage of fault for comparative negligence?

Answer 16

Trier of fact

Question 17

What are the two different types of comparative negligence?

Answer 17

Pure and modified

Question 18

What is pure comparative negligence?

Answer 18

Plaintiff can recover some percentage from liable defendants regardless of the extent of his own negligence

Question 19

If a plaintiff is 60% liable, under pure comparative negligence, how much can he recover?

Answer 19

40%, because even though he was primarily responsible for the accident, he can still recover

Question 20

What is modified or partial comparative negligence?

Answer 20

Plaintiffs are allowed a partial recovery until he reaches a certain level of culpability for his own accident, then he is completely barred from recovery

Question 21

What are the two different types of modified comparative negligence?

Answer 21

• greater than 50% approach

- 50% or greater approach

Question 22

What is the greater than 50% approach to modified comparative negligence?

Answer 22

Plaintiff is barred from recovery when he is more negligent than the defendant, or more than 50% at fault

Question 23

What is the 50% or greater approach to modified comparative negligence?

Answer 23

P Is barred from recovery when he is equal to or more negligent than defendant (greater than or equal to 50%)

Question 24

If you are 49.9% at fault, can you recover damages under the 50% or greater approach to modified comparative negligence?

Answer 24

Yes, you can recover 50.1% of damages

Question 25

What are joint tortfeasors’ liability?

Answer 25

The damages are divided by the proportion of responsibility each person owes

Question 26

If one joint tortfeasor can’t pay, what happens?

Answer 26

The others will pay that share in proportion to their own

Question 27

What does joint and several liability mean?

Answer 27

Each tortfeasor is responsible for all of the plaintiff’s damage, and the plaintiff can pursue all, one, or some of the defendants to get payment, but he can only recover once

Question 28

What happens if there is an unsatisfied judgment against one of the several joint tortfeasors?

Answer 28

That doesn’t bar the plaintiff’s action against the others

Question 29

If the plaintiff gets satisfaction against one tortfeasor, does that extinguish the cause of action?

Answer 29

Yes, and bars later suits for a greater or additional amount against any of the others

Question 30

When do you most often see joint and several liability on tests?

Answer 30

When there are multiple tortfeasors, and the answer says “X is not liable because Y is liable”. This is obviously not the answer because both can be liable

Question 31

In a joint and several liability situation, if the jury apportions more fault to the plaintiff than the defendant, what is barred?

Answer 31

Recovery of punitive damages

Question 32

If you were injured by a negligent person, and don’t get medical care and your injury is aggravated, what is the negligent person liable for?

Answer 32

The original injuries, but not the aggravation caused by the carelessness in not getting medical care

Question 33

For assumption of the risk, what does it mean for the plaintiff to know the risk?

Answer 33

He had actual and conscious knowledge of it