Defenses to Negligence
What is the difference between contributory and comparative negligence
invitee
Releasing one tortfeasor does not discharge the others unless expressly stated
Whats the difference in Statute of Limitations between occurrence and damage?
What is Attractice Nuisance Doctrine?
An exception to the no-duty-to-trespassers rule when the trespassing child is anticipated or foreseeable, there is an inherently or unreasonably dangerous condition on the premises, and the condition is likely to incite the curiosity of minors.
What is the difference between aggregate test and ICT?
Explain NC Rule of Sevens
Kid under 7 -> conclusively incapable of negligence
Kid between 7-14 -> rebuttable presumption that child is incapable of negligence
Kid over 14 -> rebuttable presumption that child is capable of negligence
What is the difference between contribution and indemnification?
Contribution is when one tortfeasor pays more than their portion of the liability and can recover the excess from the other tortfeasors, whereas indemnification is when one tortfeasor shifts entire loss to another tortfeasor
Clinton went to a hockey game between the hometown team Mighty Chickens, which were owned by the Sidney Corp. (Sidney), and the Coyotes. His seat, which was only five rows off the ice, offered an excellent view even though it was in the area behind one of the goals. During the first period, a player hit a blazing shot toward the goal and, as often happens, the puck flew off the ice. The puck flew slightly left of the goal and struck the transparent barrier protecting the fans. Instead of bouncing off the barrier, the puck shattered it, sending sharp fragments flying. One fragment struck Clinton in the face and badly injured his eye. The barrier had been severely weakened from earlier collisions with pucks and players. Though the cracks in the barrier were not visible to fans, a reasonable inspection would have revealed that the barrier needed to be replaced. Sidney had not inspected the barrier.
If Clinton brings an action against Sidney for negligence, and Sidney claims Clinton assumed the risk, which of the following arguments contains Clinton’s strongest response?
A) Though the risk of this type of accident is inherent in sitting so close to the ice at a hockey game, Sidney’s conduct was reckless, thus denying Sidney the assumption of risk defense
B) Though being hit by a flying puck is an inherent risk of sitting so close to the ice, the risk of being hit by flying fragments of the barrier is not. Clinton’s recovery should only be reduced slightly
C) Though being hit by a flying puck is an inherent risk of sitting so close to the ice, the risk of being hit by flying fragments of the barrier is not. Clinton should recovery fully
D) Because Clinton voluntarily chose to attend the game, he may not recover
What is the difference between Joint and Several Liability and Several Liability?
In Joint and Several Liability jurisdictions, the plaintiff can recover from one, some, or all defendants regardless of fault percentages. In Several Liability jurisdictions, the plaintiff can only recover from each defendant in proportion to their fault percentage.
A bright 12-year-old child attended a day-care center after school. The day-care center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable.
At a time when the pond was obviously only partially frozen, the child sneaked away from the center's property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby.
At the time of the incident, the pond was clearly marked with numerous signs that stated, "THIN ICE—KEEP OFF." When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation's property from the day-care center.
The jurisdiction follows a rule of pure comparative negligence.
In a suit brought on the child's behalf against the corporation and based only on the facts above, who is likely to prevail?
A) The child, because the corporation owes a duty to keep its premises free of dangerous conditions
B) the child, because the pond was an attractive nuisance
C) the corporation, because the danger of thin ice may reasonably be expected to be understood by a 12-year old child
D) the corporation, because the day-care center had a duty to keep the child off the ice
(U-world)
C
Occupier has a duty to warn the licensee and make safe any dangerous, non-obvious artificial and natural conditions that the occupier knows about
Occupier has no duty to inspect for or repair dangerous conditions that are hidden or of which the occupier is not aware
Occupier must carry on activities on the premises using reasonable care to prevent injury to licensees.
What is the difference between “contribution” and “indemnity” in the context of multiple parties and financial responsibilities for tortious conduct?
(A) Contribution considers whether a second tortfeasor played a role in causing the harm; indemnity does not.
(B) Contribution is available in intentional tort claims as well as claims of negligence; indemnity is available only for negligence.
(C) Indemnity obliges a second person or entity to pay the first person or party for damages paid out; contribution provides for sharing of this expense.
(D) Indemnity provides that a second person or entity will not be liable for tortious conduct; contribution makes this immunity discretionary rather than mandator
Answer (C) is correct because it describes the difference between contribution and indemnity.
Answer (A) is incorrect because both contribution and indemnity ask whether a second tortfeasor played a role in causing the harm.
Answer (B) is incorrect because although negligence is the context in which both most claims of contribution and indemnity are considered, there is no rule limiting either of them to negligence alone.
Answer (D) is incorrect because it does not identify a difference between contribution and indemnity.
At Coltrane College, the trendy new drug is called Zip. An undergraduate student named Alice came up with the formula and synthesizes it (illegally) in a campus laboratory, selling it to peers. People who take Zip enjoy gentle hallucinations and elevated mood. Zip is usually consumed in liquid form, mixed with vodka or a soft drink like soda or lemonade.
Alice has learned that Zip is partially neutralized by digestion before it reaches a user’s bloodstream. Zip can be taken at full strength by injection, but most Coltrane undergraduate schools will not consume recreational drugs that require needles. Alice is working on a medium for Zip that will preserve its strength after oral consumption.
Mack, a classmate, approached Alice and said he wanted to buy “Super Zip.” Alice explained that for now the intense form of the drug could only come by injection. Mack said, “No, just give me enough to make it super without needles. As much as I need.” Alice did not know what dosage would make it “super.” She estimated that four times the injectable amount in drinkable form would give Mack the same effect. Mack consumed the Zip that Alice sold him by mixing it with vodka. Unfortunately, Alice’s estimate proved inaccurate and Mack suffered brain damage attributable to the size of his Zip dose. Mack brought an action against Alice. Assume that Alice’s estimate was rendered negligently.
Is Mack’s claim barred by assumption of risk?
A) Yes, because Mack voluntarily consumed Zip
B) Yes, because Mack asked for a larger dose than what Alice normally sold
C) No, because as an addict Mack did not act voluntarily
D) No, because Mack lacked knowledge of the risk he was assuming
Same facts as above except that Mack had a different experience with the large dose of Zip. Mack came home, took Zip with vodka, settled on the sofa near his girlfriend Isolde, and enjoyed intense hallucinations while watching a movie. No brain damage, but Mack suddenly thought if he leaped into the air he would float. He climbed onto the arm of the sofa and leaped, landing hard on Isolde and causing injury to her. In an action by Isolde against Mack and Alice, the defendants claimed that Isolde was comparatively negligent.
Which of the following points, assuming Isolde can support it, best strengthens Isolde's position with respect to this defense?
(A) Isolde did not know the effects of Zip on a user.
(B) Isolde did not know that Mack had taken any drug.
(C) Isolde had no reason to know that Mack had taken a drug.
(D) Isolde had no reason to know that Alice's assessment of how much Zip made the dose “super” was only a best-efforts estimate
Correct answer to the first question is D) No, because Mack lacked knowledge of the risk he was assuming
For the second question is (C) is correct. Isolde is trying to establish that she did not act unreasonably by sitting on the sofa next to Mack. Of the four choices, this answer describes reasonable conduct most clearly.
Answer (A) is incorrect because the standard of care for negligence, including negligence by a plaintiff, is objective. What Isolde as an individual happened to know or not know doesn't matter.
Answer (B) is incorrect because it too, like (A), does not comport with the objective approach to negligence.
Answer (D) is incorrect because Alice's negligence does not relate directly to Isolde's conduct (even though Alice is a defendant). The issue here is whether Isolde acted unreasonably by sitting on the sofa next to Mac
A man has a small trampoline in his backyard which, as he knows, is commonly used by neighbor children as well as his own. The trampoline is in good condition, is not defective in any way, and normally is surrounded by mats to prevent injury if a user should fall off.
Prior to leaving with his family for the day, the man leaned the trampoline up against the side of the house and placed the mats in the garage. While the family was away, a new boy in the neighborhood, aged 11, wandered into the man's yard and saw the trampoline. The boy had not previously been aware of its presence, but having frequently used a trampoline before, he decided to set it up and started to jump. He lost his balance on one jump and took a hard fall on the bare ground, suffering a serious injury that would have been prevented by the mats.
An action has been brought against the man on the boy's behalf to recover damages for the injuries the boy sustained from his fall. In this jurisdiction, the traditional common law rules pertaining to contributory negligence have been replaced by a pure comparative negligence rule.
If the boy's suit fails, what will be the most likely reason?
A) An 11-year old child who has frequently used a trampoline should reasonably understand the daner of using a trampoline without mats
B) The boy did not know about the trampoline before entering the man's yard and thus was not "lured" onto the premises
C) the boy entered the man's yeard and used the trampoline without the man's permission
D) the boy failed to exercise reasonable care commensurate with his age, intelligence, and experience
(U-world)
A
What is the difference between Implied Primary Assumption of Risk and Implied Secondary Assumption of Risk?
For primary the defendant does not owe the plaintiff any duty of care because of the inherent nature of the activity whereas with secondary the defendant does owe a duty of care and breached it but the plaintiff still knowns of the specific risk created by the negligence and voluntarily chose to encounter it anyway
What is the Invitee Rule?
Occupier is required to take full reasonable care measures to reasonably prevent foreseeable harm to others.
Barry was a passenger in a boat owned and rowed by Vlad. The two were headed to a meeting of geopolitical significance located on an island. Vlad negligently caused the rowboat to turn over and then swam away without helping Barry, a non-swimmer. Fortunately, a passing motorboat arrived in only a few minutes and transported Barry to shore. Barry and the rescuer agreed that although Barry felt well, it might be a good idea for Barry to go to an emergency room. An ambulance drove Barry to the hospital. Unfortunately, Dr. Medvedev the emergency room doctor, negligently injured Barry's back while attempting to move him onto a hospital bed.
If Barry brings negligence actions against both Medvedev and Vlad for the back injury, then ...
(A) only Vlad is likely to be held liable.
(B) only Dr. Medvedev is likely to be held liable.
(C) both Vlad and Dr. Medvedev are likely to be held liable.
(D) neither Vlad nor Dr. Medvedev is likely to be held liable, because it is impossible to apportion the injury between the two defendants.
Answer (C) is correct. Dr. Medvedev will be liable for the back injury because it was caused by his own negligence. Vlad will be liable because his original negligence in causing the accident was a cause in fact and proximate cause of the back injury. Courts hold almost unanimously that a tortfeasor is liable for enhanced injury caused by a rescuer, medical personnel, or others who render aid to the victim.
Under a “directness” or “intervening cause” theory of proximate cause, the doctor is not treated as a “superseding cause.” Under a scope of risk analysis, additional harm suffered at the hands of a rescuer or medical personnel is within the foreseeable scope of risk created by the original act of negligence. (Some courts explain that the harm was within the scope of risk by noting that the dust had not yet settled from the original accident when Barry suffered further injury.)
Answers (A) and (B) are incorrect because, as explained above, both Vlad and Dr. Medvedev are liable for the back injury.
Answer (D) is incorrect because there is no need to apportion responsibility for the back injury; both Vlad and Dr. Medvedev will be liable for the full injury (though Barry may not recover more than the amount of that injury). This is a situation in which the court will impose joint and several liability.
Which of the following is not a plausible argument in support of the choice made by some states to abolish joint and several liability?
(A) Joint and several liability is inconsistent with the modern adoption of comparative fault.
(B) Joint and several liability assigns liability out of proportion to a defendant's degree of relative culpability.
(C) Joint and several liability compels solvent defendants to supply what insolvent or immune defendants do not contribute to an award of damages.
(D) Joint and several liability is imposed whether or not the plaintiff's fault contributed to the injur
Answer (D) is correct. The presence or absence of comparative fault in a particular case is a separate question that does not pertain directly to the debate over whether to retain or abolish joint and several liability. The other arguments are frequently mentioned by critics.
Answer (A) is incorrect because it argues that the arrival of comparative fault (as a doctrine, not in a particular case) has made courts and juries familiar with fractional apportionment, and so it makes sense to apply this practice toward “proportional,” rather than joint and several, liability.
Answer (B) is incorrect. It is a fairness argument that critics often raise.
Answer (C) is incorrect. This argument comes up frequently in the context of workplace injury, where an employer is much more to blame than a product manufacturer, but because of employer immunity, the product manufacturer is saddled with the worker's damages.
In claims of respondeat superior, who decides the question of whether an employee's act falls within the scope of employment: the judge or the jury?
Jury. The question is typically fact-specific. Unfortunately for employers, scope-of-employment disputes often cannot be resolved in summary judgment proceeding
What is Last Clear Chance Doctrine and what defense does it apply to?
The plaintiff who has acted negligently can still recover IF the defendant, by exercising ordinary care, had the last clear chance to avoid the accident. The defendant must have had sufficient time and ability to avoid.
It applies as a defense to contributory negligence.
What is the Discovered Trespasser Rule?
Occupier has a duty to warn the known trespasser of any dangerous, non-obvious artificial conditions that the occupier knows about.
Comparative fault jurisdiction follows several liability, what are the exceptions?
Defendants acting in concert
Defendants failing to perform common duty
Defendants with vicarious liability
Defendants in products liability chain of distribution
Defendant 1 with a duty to protect others from defendant 2s intentional acts
While shopping in Irving's Grocery Store (Irving's), Lina approached a display of glass jars of jam. The jars were stacked from waist height of a standing person to six or seven feet from the ground, and the rows were separated by corrugated cardboard. The display was unreasonably dangerous in an obvious way, being both too high and too precariously constructed. Lina decided to buy a few jars. She slowly began to pull the first jar out. Just before the jar was completely out, the display began to shake, and Lina stopped pulling out the jar. She was about to push it back into the stack when Robespierre, another shopper, accidentally bumped his cart into Lina. This contact caused Lina's hand to jolt forward, and the entire display fell over. Both Lina and Robespierre were knocked down and suffered glass cuts.
Lina brought an action against Irving's for negligence; Irving's impleaded Robespierre. The jurisdiction long ago abolished the trespasser-licensee-invitee distinction for land-visitor plaintiffs and replaced contributory negligence with comparative negligence. On the question of apportionment, it treats assumption of risk the same as comparative negligence, using both as a basis for dividing damages rather than an absolute defense.
it be correct for the court to reduce Lina's recovery by taking into account Lina's own responsibility for her injury?
(A) No, because Lina was an invitee. Carelessness does not reduce the recovery of a visitor in this status category.
(B) No, because a reasonable person would have had no awareness of the danger in Irving's display.
(C) Yes, because the availability of Robespierre as a defendant means that the court must necessarily engage in apportionment.
(D) Yes, because Lina failed to exercise reasonable care for her own safety and her conduct contributed to the fall of the display.
Same facts as above. If Irving's claims Lina assumed the risk of injury, which of the following statements is most accurate?
(A) Lina will recover nothing only if the risk was inherent in the activity and Irving's was merely careless.
(B) Lina will recover nothing if she appreciated the risk and voluntarily decided to confront it.
(C) Lina's recovery will be reduced only if her conduct amounted to comparative negligence.
(D) Lina's recovery will be reduced only if she appreciated the risk and voluntarily confronted it.
For the first Question: Answer (D) is correct. The danger of the display, as described, is apparent. A reasonable person in Lina's position would either avoid it or ask an Irving's employee for help getting the jars of jam. Accordingly, the jurisdiction would apply comparative negligence as stated in Answer (D).
Answer (A) is incorrect because even if the jurisdiction had not abolished the land visitor status categories, which makes the label “invitee” obsolete there, an invitee can have her recovery reduced under apportionment principles. All that being an invitee could ever mean for Lina is that she is entitled to reasonable care.
Answer (B) is incorrect for the reason above that explains the correct answer.
Answer (C) is incorrect because the presence of Robespierre as a co-defendant has nothing to do with the question asked.
For the second question Answer (D) is correct. Assumption of risk is an affirmative defense that requires defendant to prove (1) that plaintiff recognized and appreciated the specific risk she was confronting; and (2) that plaintiff chose voluntarily to confront the risk. Under a system of comparative fault like the one in the jurisdiction, the defense reduces plaintiff's recovery. Here, if the jury finds that Lina knew and appreciated the risk that the stack of jars would fall, and chose voluntarily to confront it, it may reduce her award.
Answer (A) is incorrect because it speaks to the doctrine of “primary” assumption of risk, where the defendant did not breach its duty, rather than the secondary assumption of risk at issue here: Irving's did breach its duty to Lina.
Answer (B) is incorrect because although it could be correct in a different jurisdiction, the question states that this jurisdiction does not treat assumption of risk as an absolute defense.
Answer (C) is incorrect because it wrongly equates assumption of risk with comparative negligence. The two defenses have different elements.
Explain the differences between artificial and natural conditions and active operations
Artificial conditions are manmade and not currently being worked on, just present on the premises. Natural conditions are naturally occurring and active operations are current changes or improvements to the premises