Affirmative Defenses to Negligence

Question 1

Contributory Negligence: Define

Answer 1

Negligence on the part of the P that contributes to her injuries.

Question 2

Implied Assumption of the Risk: When can a plaintiff be denied recovery under this defense? Elements?

Answer 2

When she assumed the risk of any damage caused by defendant’s act.

She must have known of the risk and voluntarily proceeded in the face of the risk.

Question 3

If a plaintiff has failed to exercise reasonable care for his own safety or has violated a self-protecting statute (j-walking statute), the defendant can . . .

Answer 3

Offer evidence of that fact to the jury

Question 4

Once D introduces evidence that laintiff has failed to exercise reasonable care for his own safety or has violated a self-protecting statute (j-walking statute), the jury will be asked to do what?

Answer 4

Assign blame between the parties (comparative negligence)

Question 5

Under comparative negligence regime, a plaintiff’s recovery is reduced based on . . .

Answer 5

His assigned percentage of fault.

Question 6

Under PURE comparative fault system, the plaintiff recovers . . .

Answer 6

Damages reduced by his portion

Question 7

Under a modified comparative fault system, plaintiff fault under 50% does what? Over 50% does what?

Answer 7

Under 50% reduces recovery

Over 50% becomes absolute bar to recovery.

Question 8

The standard of care for comparative negligence is the same as . . .

Answer 8

Ordinary negligence

Question 9

What defense have courts all but abandoned: Contributory or comparative negligence? Why?

Answer 9

Contributory

Contributory negligence completely barred a P’s right to recovery at CL

Question 10

Knowledge of a risk may be implied where the risk is one . .

Answer 10

That an average person would clearly appreciate.

Question 11

Assumption of risk is/isn’t a defense to intentional torts.

Answer 11

Isn’t

Question 12

Assumption of risk is/isn’t a defense to wanton and willful misconduct.

Answer 12

Is

Question 13

On the MBE, assume that a pure/modified comparative negligence statute applies unless the question states otherwise.

Answer 13

Pure

Question 14

States that have a pure comparative negligence regime allow what sort of recovery when plaintiff was negligent?

Answer 14

Proportionate, regardless of fault percentage

Question 15

States that have a partial comparative negligence regime allow what sort of recovery when plaintiff was negligent?

Answer 15

Proportionate, up until plaintiff is greater that 50% negligent

Question 16

In most states, a plaintiff’s negligence will/won’t be taken into account when the defendant’s conduct was wanton and willful OR reckless.

Answer 16

Will

Question 17

A plaintiff’s negligence is/isn’t a defense to intentional torts by D.

Answer 17

Isn’t