Negligence Defenses

Question 1

What is contributory negligence?

Answer 1

A legal doctrine where a plaintiff cannot recover damages if their own negligence contributed to their injury in any way, unless specific exceptions apply

Exceptions include wanton and willful misconduct by the defendant or if the defendant had the last clear chance to avoid the injury.

Question 2

In a contributory negligence jurisdiction, what are the exceptions that allow recovery despite the plaintiff’s negligence?

Answer 2

• Defendant engaged in wanton and willful misconduct
• Defendant had the last clear chance to avoid injury

Question 3

Is contributory negligence a valid defense for intentional torts?

Answer 3

No

Question 4

What is comparative fault?

Answer 4

A legal doctrine that limits recovery based on the plaintiff’s own negligence but does not necessarily bar it completely

Question 5

What are the two approaches to comparative fault?

Answer 5

• Pure Comparative Negligence
• Modified Comparative Negligence

Question 6

How does pure comparative negligence work?

Answer 6

Recovery is limited by the percentage of fault attributed to the plaintiff’s own negligence

Question 7

In pure comparative negligence, if a plaintiff is found 95% at fault, what percentage of damages can they recover?

Answer 7

5%

Question 8

How does modified comparative negligence differ from pure comparative negligence?

Answer 8

Recovery is limited by the percentage of fault, but if the plaintiff is more at fault than the defendant, recovery is completely barred

Question 9

Under modified comparative negligence, if a jury finds the plaintiff 51% at fault, what is the outcome?

Answer 9

The plaintiff is completely barred from recovery

Question 10

If a jury finds the plaintiff 50% at fault under modified comparative negligence, what can the plaintiff recover?

Answer 10

50% of her damages

Question 11

In some modified comparative neg jurisdictions, what happens if the plaintiff and defendant are equally at fault?

Answer 11

The plaintiff’s recovery is completely barred

Question 12

What is assumption of risk in the context of negligence?

Answer 12

A defense that applies when a party knowingly and willingly embraces a risk for their own purpose

Question 13

Can assumption of risk be either express or implied?

Answer 13

Yes

Question 14

What is the difference between assumption of risk and consent in torts?

Answer 14

assumption of risk applies to negligence
consent applies to intentional torts