DEFENSES - NEG

Question 1

Contributory Negligence

Answer 1

• minority
• complete bar
• raised after P has proven prima facie case

Question 2

Comparative Fault (pure vs.modified)

Answer 2

• Pure: (CA), P’s recovery reduced based on % of fault

- Modified: more at fault (+%50), or as much at fault (=+%50)

Question 3

Assumption of Risk - Express

Answer 3

• complete bar, UNLESS against public policy

- typically based on waivers (written or oral release)

Question 4

Express Assumption - Public Policy Factors

Answer 4

• Tunkl factors (invalidates express AR);
• unequal bargaining power
• dealing with a necessity (importance to public)
• adhesion K (take it or leave it)
• person or property under control of seller
• party willing to perform the service for any member of public
• business of type generally thought suitable for public regulation

Question 5

Assumption of Risk - Implied/Secondary

Answer 5

• mental capacity and state of mind is key
• elements; knowledge, appreciation, and voluntary exposure to specific risk
• majority (CA), treat is like CF (but still separate defense), reduces damages

Question 6

Assumption of Risk - Primary

Answer 6

• duty issue!!! - no duty to be non-negligent to P simply by engaging in certain activities - complete bar
• case would get thrown out