Deck 8: Negligence: Defenses

Question 1

Most states have retained contributory negligence rather than adopting comparative negligence.

Answer 1

False

Question 2

Some courts have used the theory, based on the premise that funds paid to charitable institutions should not be used to pay judgments resulting from tort claims, to justify charitable immunity. An alternate theory that is also used to justify charitable immunity is called the theory.

Answer 2

trust fund, implied waiver

Question 3

Pursuant to the, the federal government is not immune from suit due to the negligence of its employees. The government has no liability, however, if the employee is performing a(n) function at the time he or she acts negligently.

Answer 3

FTCA, discretionary

Question 4

If a defendant is negligent per se, he or she cannot raise the defense of contributory negligence unless and .

Question 5

In some states, assumption of risk is distinguished from contributory negligence in that one who acts with adventurousness is said to have , while one who acts carelessly is said to have . Furthermore, under assumption of risk, a(n) standard is used to evaluate the plaintiff's conduct, while under contributory negligence, a(n) standard is used.

Question 6

The only rationale behind contributory negligence is that plaintiffs should be punished for failing to protect themselves from harm.

Question 7

The 50 percent approach is problematic when jurors assign a 50-50 apportionment in terms of blame of the parties.

Question 8

Under the doctrine, a defendant remains liable if he or she had an opportunity to avoid the harm that occurred to the plaintiff and failed to do so, assuming the plaintiff did not have such an opportunity. This doctrine is not applicable, however, in the case in which the defendant's original act of negligence prevents him or her from avoiding the accident.

Question 9

The last clear chance doctrine is inapplicable when the defendant's original act of negligence precludes the defendant from avoiding the accident after he or she becomes aware of the plaintiff's danger.

Question 10

Contributory negligence is not a defense if the defendant acts intentionally but is a defense if the defendant acts recklessly.

Question 11

In those states that have adopted comparative negligence, the plaintiff can recover even if a jury determines the plaintiff was 70 percent responsible for his or her own injuries under a comparative negligence standard but cannot recover under a approach. Under the latter approach, if a jury assigns a 50-50 apportionment in terms of blame, a plaintiff cannot recover under the approach but can recover under the approach.

Question 12

The question of contributory negligence is a question of law for a judge to decide.

Question 13

A defendant who is negligent per se is always entitled to raise contributory negligence as a defense.

Question 14

and are two types of public officials who receive complete immunity as long as the act complained of is within the scope of their duties.

Question 15

Proximate cause is always construed more narrowly in the case of contributory negligence than in the case of a defendant's negligence.

Question 16

The biggest question surrounding statutes of limitations is the question of . The so-called doctrine was developed to deal with this problem, providing that statutes begin to run when a problem is found to exist.

Question 17

The last clear chance doctrine was developed to avoid the harshness of the contributory negligence rule.

Question 18

Statutes that limit the time period in which someone can sue the manufacturer of a product are called .

Question 19

In a negligence system, a plaintiff that contributes to his or her own injuries is barred from recovery, while in a negligence system, his or her recovery is reduced in direct proportion to the degree that the plaintiff contributed to his or her injuries.

Question 20

At the level of local government, functions are subject to immunity while functions are not.

Question 21

Most states have abolished sovereign immunity today.

Question 22

An express agreement to assume a risk is not enforced by the courts if the defendant had unusual bargaining power or was the sole provider of a service.

Question 23

The fear that the abolition of spousal immunity would result in a flood of fraudulent cases has come to pass in those states that have abolished such immunity.

Question 24

Most states have retained interspousal immunity but have abolished, or at least limited, parent-child immunity.

Question 25

Under the common law, spouses were considered one entity and could not sue one another.

Question 26

A plaintiff cannot assume a risk of which he or she is unaware even if a reasonable person would have been aware of such a risk.

Question 27

Assumption of risk cannot be raised as a defense in strict liability cases.

Question 28

The rationale underlying the immunity of judges is that they must be able to carry out their duties without fear of being sued.

Question 29

Police departments and school systems are governmental functions that are subject to immunity.

Question 30

Some states consider assumption of risk to be a form of contributory negligence.

Question 31

Some argue that charitable organizations should be immune from suit because beneficiaries of such organizations impliedly waive their rights to sue by accepting the benefits the organization has to offer.

Question 32

The majority of courts have abolished charitable immunity but only in reference to charitable hospitals.

Question 33

Under the 50 percent approach, a plaintiff can never recover if his or her negligence exceeds the negligence of any one defendant.

Question 34

In some states, a defendant who has negligently injured a child can bring a claim of negligent supervision against the child's parents.

Question 35

Some states have characterized contributory negligence as adventurousness and assumption of risk as carelessness.

Question 36

If governmental immunity is abolished, the immunity of public officials is abolished as well.

Question 37

The FTCA allows money damages to be collected against the United States for all intentional torts of its employees.

Question 38

An objective standard is used to assess the reasonableness of a defendant's conduct in cases of contributory negligence, while a subjective standard is used in cases involving assumption of risk.

Question 39

A defendant who is reckless may rely on the defense of comparative negligence to reduce the plaintiff's recovery.

Question 40

One exception to tort liability under the FTCA excludes liability for a federal employee's exercise of a proprietary function.

Question 41

Most states have some form of a state tort claims act that replaces complete sovereign immunity.

Question 42

Name two circumstances in which contributory negligence is not a defense.

Question 43

What is the difference between a pure comparative negligence standard and a 50 percent approach?

Question 44

Contributory negligence arguably undermines confidence in the jury system.

Question 45

What is the last clear chance doctrine?

Question 46

Under the FTCA, federal employees are employees effectively immune from suit.

Question 47

What is the difference in consequences to a plaintiff that is found contributorily negligent as to whether the claim has been filed in a contributory negligence state or a comparative negligence state?

Question 48

Some argue that the discovery doctrine has contributed to the rising cost of medical malpractice insurance.

Question 49

Professional athletes are presumed to be more aware of the risks involved in their sport than amateurs.

Question 50

Claimants' failure to comply with statutory notice requirements usually has no effect on their ability to recover.

Question 51

Under the FTCA, plaintiffs can file suit against the United States and against federal employees individually.

Question 52

Under the FTCA, an inmate of a correctional institution is prohibited from filing suit against an employee of that institution.

Question 53

Suppose a jury determines that the plaintiff is 50 percent to blame for his or her injuries and that the defendant is 50 percent to blame for his or her injuries. What will the plaintiff recover if the jurisdiction in which the claim is litigated adheres to the "not as great as" approach?

Question 54

What was the rationale behind the development of contributory negligence? Why have many courts found exceptions to this rule?

Question 55

To be enforceable, a release must be written in clear, unequivocal language.

Question 56

Statutes of repose allow plaintiffs who are injured by defective products to recover even though they might not have been able to recover pursuant to a statute of limitations.

Question 57

Statutes of limitations begin to run when actual injury to the plaintiff or the plaintiff's property occurs.

Question 58

Identify one circumstance in which the last clear chance doctrine is not applicable.

Question 59

The discovery doctrine mitigates the harshness of some statutes of limitation.

Question 60

Statutes of limitations protect defendants from having to defend stale claims.

Question 61

Explain the two theories that have been advanced to justify charitable immunity.

Question 62

Name two differences between contributory negligence and assumption of risk.

Question 63

What must a defendant prove before he or she can allege that a plaintiff impliedly assumed the risk?

Question 64

What is a potential problem in a case involving multiple defendants in a jurisdiction that has adopted the 50 percent approach?

Question 65

What does the FTCA provide in terms of liability for negligent and intentional torts committed by government employees?

Question 66

In what circumstance might a court not enforce an express agreement to assume the risk?

Question 67

What is the potential problem in reference to the statute of limitations in cases involving defective products?

Question 68

What is the status of interspousal immunity today?

Question 69

For what reason was interspousal immunity developed under the common law?

Question 70

What is the status of parent-child immunity today?

Question 71

What is a statute of repose and when does it begin to run?

Question 72

How have some courts circumvented the problem presented in question 17?