Part Five.5: Negligence > Defenses to Negligence Flashcards Preview

Torts > Part Five.5: Negligence > Defenses to Negligence > Flashcards

Flashcards in Part Five.5: Negligence > Defenses to Negligence Deck (7)
Loading flashcards...
1

In General, what do you need to know as far as defenses to negligence?

1. Contributory Negligence (and last clear chance exception)
2. Assumption of Risk
3. Comparative Negligence

2

What is the rule regarding "Assumption of Risk"?

P may be denied recovery if she assumed the risk of any damage caused by D's act. (Express or Implied)

P must have:
1. KNOWN the risk; AND
2. VOLUNTARILY PROCEED in the face of the risk

3

May "assumption of risk" be express or implied?

Yes.

1. "Express assumption of risk"
2. "Implied assumption of risk" - Knowledge may be IMPLIED where the risk is one that an average person would clearly appreciate

4

What are the limitations on "Assumption of Risk"?

There is no assumption of risk:
1. if there is no available alternative to proceeding in the fact of the risk, OR
2. in situations involving fraud, force, or an emergency

5

What are the limitations on "Assumption of Risk" related to common carriers and/or public utilities?

Common carriers and public utilities cannot limit their liability by disclaimer

6

What are the limitations on "Assumption of Risk" related to members of a protected class?

Members of a class protected by statute will not be deemed to have assumed any risk

7

Is "Assumption of Risk" a defense to intentional torts?

Assumption of risk is NOT a defense to intentional torts, but it IS a defense to wanton and willful misconduct