Negligence

Question 1

Types of Negligence Defence

Answer 1

1. Contributory Negligence (minority approach)
2. Comparative Negligence (majority approach)

Question 2

Contributory Negligence (what is it?)

Answer 2

This is the minority approach,

IF the plaintiff’s negligence contributed to the accident, then the plaintiff is completely barred (can not get money or compensation for the damages)

*Burden to prove and plead is on defendant, to prove that P’s negligence was a major factor in the accident.

Question 3

What is Comparative Negligence?

Answer 3

This is the majority approach

If the Plaintiff’s negligence was less than the defendants negligence, then the P may recover
- Plaintiff;s recovery will be reduced to the percentage of negligence contributed.

Two types of Comparative negligence
1. Pure (full) Approach
% of P fault reduces damages recovery

2. Modified (Partial) approach
   - P can only do so under two approaches

• 50% allowed rule (tie to plaintiff) (majority)
• is not greater than language
• 50% bar rule (tie to defendant) (minority)

Question 4

Multiple Defendants and Negligence in Comparative Negligence (what is the majority and minority approach)

Answer 4

1. Majority - collective defendants
2. Minority - defendant - by defendant

Question 5

Doctrine of Avoidable Consequences

Answer 5

If plaintiff doesn’t do what a reasonable person would do to lessen the damages after an accident or a problem, they might not be bale to get compensation for those damages. (cannot seek recovery for damages that he could have avoided by acting reasonable after the accident)
- (example - infection after not getting stitches that he was supposed to after accident, defendant will not be held liable for damages from infection)

Question 6

Assumption of Risk - Mostly Abandoned - general elements

Answer 6

A. knowledge
b. voluntariness

Majority approach - Express assumption of risk (words or written or oral)

Minority approach - Implied assumption of risk (assumed risk through conduct or actions)
traditional approach - complete bar to recovery) = affirmative defence

modern approach - (comparative negligence)

Question 7

when does the statue of limitations period begin for the cause of action

Answer 7

When the plaintiff discovered, or should have discovered, the negligently inflicted injury (rather than at the time of the injury)

Question 8

when can a municipality lose its governmental immunity and be held liable for negligence?

Answer 8

when a relationship is created between the government employee and the individual, and the government employee assumes (creates) the duty, but later breaches it - as this gives rise to a special duty

Question 9

Who is immune from liability for negligent conduct?

Answer 9

1. judicial proceedings
2. employers
3. families
4. charities
5. tribes - specifically Native American tribes
6. public officers
7. government (state and federal) , if their actions were
   - discretionary (voluntary) or grounded in social, economic, or political goals