1
Q
What are the five elements of negligence?
A
Duty, breach, actual cause, proximate cause, damages.
2
Q
When do contributory and comparative negligence apply?
A
As defenses after all five elements of negligence are established.
3
Q
What is contributory negligence?
A
Plaintiff conduct that falls below the reasonable person standard and is an actual and proximate cause of the plaintiffs harm.
4
Q
What standard of care applies to contributory negligence?
A
The same objective reasonable person standard used for defendants.
5
Q
What is the effect of contributory negligence on recovery?
A
It is a complete bar to recovery.
6
Q
How much plaintiff fault is required to bar recovery under contributory negligence?
A
Any fault at alleven 1%.
7
Q
Must plaintiff negligence cause the harm to bar recovery?
A
Yesplaintiff conduct must be both the actual and proximate cause.
8
Q
If plaintiff acts unreasonably but does not cause the harm, is recovery barred?
A
Nocontributory negligence does not apply without causation.
9
Q
Does failing to wear a seatbelt automatically bar recovery under contributory negligence?
A
No, unless it is an actual and proximate cause of the injury.
10
Q
What doctrine may reduce damages when injuries are worsened by failure to wear a seatbelt?
A
Anticipatory mitigation (similar to mitigation of damages).
11
Q
Does anticipatory mitigation bar recovery?
A
Noit only reduces damages.
12
Q
What is the Last Clear Chance Doctrine?
A
A rule allowing recovery despite contributory negligence if the defendant had the final opportunity to avoid the harm.
13
Q
What are the elements of last clear chance?
A
- Plaintiff was negligent 2. Defendants negligence occurred after 3. Defendant had a chance to avoid harm 4. Defendant failed to do so
14
Q
Does last clear chance override contributory negligence?
A
Yes.
15
Q
Does last clear chance apply in comparative negligence jurisdictions?
A
No.
16
Q
What is comparative negligence?
A
A defense that reduces plaintiffs recovery based on their percentage of fault.
17
Q
How does comparative negligence differ from contributory negligence?
A
It is a shared-blame system, not all-or-nothing.
18
Q
What must be shown for comparative negligence to apply?
A
Plaintiff breached the standard of care and was an actual and proximate cause of the harm.
19
Q
What is pure comparative negligence?
A
Plaintiff can recover damages no matter how high their percentage of fault.
20
Q
How is recovery calculated under pure comparative negligence?
A
Total damages נdefendants percentage of fault.
21
Q
Can a plaintiff recover if they are 99% at fault under pure comparative negligence?
A
Yesrecovery would be 1%.
22
Q
What is modified comparative negligence?
A
Plaintiff can recover only if their fault does not exceed a specified threshold.
23
Q
What are the two common modified comparative negligence rules?
A
- Greater-than-50% rule 2. 50%-or-greater rule
24
Q
Under the greater-than-50% rule, when is recovery barred?
A
When plaintiff is 51% or more at fault.
25
Under the 50%-or-greater rule, when is recovery barred?
When plaintiff is 50% or more at fault.
26
If plaintiff is 49% at fault under modified comparative negligence, can they recover?
Yesrecovery is reduced to 51%.
27
Does last clear chance apply in comparative negligence systems?
Noit is generally abolished.
28
How are seatbelt issues handled under comparative negligence?
By assigning a percentage of fault to the plaintiff.
29
Which system is harsher on plaintiffscontributory or comparative negligence?
Contributory negligence.
30
If a jurisdiction uses contributory negligence, what doctrine might save the plaintiff?
Last clear chance.
31
If a jurisdiction uses comparative negligence, what replaces last clear chance?
Fault apportionment.
32
State the rule for contributory negligence in one sentence.
Contributory negligence completely bars recovery if the plaintiffs unreasonable conduct was an actual and proximate cause of their injury.
33
State the rule for comparative negligence in one sentence.
Comparative negligence reduces the plaintiffs recovery by their percentage of fault rather than barring recovery entirely.
34
What two affirmative defenses to negligence are the focus of this seminar set?
(1) Contributory/comparative negligence and (2) Assumption of the risk.
35
How do contributory negligence jurisdictions treat plaintiff negligence?
Plaintiff’s negligence is a complete bar to recovery.
36
How do comparative negligence jurisdictions treat plaintiff negligence?
Plaintiff’s recovery is reduced by plaintiff’s percentage of fault.
37
What is assumption of the risk (A/R) in general terms?
A defense where plaintiff knowingly and voluntarily encounters a risk, barring recovery (in jurisdictions recognizing it).
38
What are the two elements of assumption of the risk?
(1) Known and appreciated risk + (2) Voluntary exposure to that risk.
39
Is the “knowledge” element of assumption of the risk objective or subjective?
Subjective—the question is whether this plaintiff actually knew of the risk.
40
Does it matter that a reasonable person would have known the risk for assumption of the risk?
Not for assumption of the risk—actual knowledge by the plaintiff is what matters (subjective standard).
41
Who has to prove assumption of the risk?
The defendant (it’s an affirmative defense).
42
What is the typical effect of assumption of the risk once proven?
Complete bar to recovery.
43
Why do some students think assumption of the risk might “reduce” recovery?
Some jurisdictions fold implied assumption of the risk into comparative negligence, reducing recovery instead of barring it.
44
What are the two types of assumption of the risk?
Express assumption of the risk and implied assumption of the risk.
45
Which type of assumption of the risk are you more likely to see on exams (per professor)?
Implied assumption of the risk.
46
GM brake recall hypo: Plaintiff reads notice saying “do not drive,” drives anyway, brakes fail—barred/reduced/unaffected?
Barred (classic assumption of the risk: known risk + voluntary exposure).
47
In the GM recall hypo, why doesn’t “I had to get to work” defeat assumption of the risk?
Because plaintiff had reasonable alternatives (Uber/taxi/friend/etc.), so exposure was still voluntary.
48
GM recall variant: plaintiff doesn’t read the notice and drives—assumption of the risk?
No, because plaintiff didn’t know of the risk (no actual knowledge).
49
In the GM recall variant, what defense is most likely instead?
Comparative negligence (e.g., negligent not to read notice / keep driving despite warning signs).
50
Key exam takeaway when choosing between assumption of risk vs comparative negligence?
If facts don’t show plaintiff actually knew the risk, don’t argue A/R—at most, argue comparative negligence.
51
Ex parte Barron (hazing) issue: why was exposure “voluntary” even if plaintiff claimed he had no choice?
He could have left, others had left, he denied hazing when asked, and facts showed repeated opportunities to stop participating.
52
Why did the court emphasize fraternity/college students are not “children”?
They’re treated as adult citizens responsible for their actions, supporting “voluntary exposure” analysis.
53
In rescue-related situations, is assumption of risk automatically unavailable?
No—rescuers are not automatically shielded from A/R or contributory/comparative negligence.
54
When does assumption of risk remain viable against a rescuer (per the seminar)?
If the rescuer’s danger-taking is disproportionate to the benefit, or if a reasonably safe alternative existed.
55
What is the core “balancing” idea for rescue conduct and defenses?
Compare dangerous conduct vs benefit and ask whether safer alternatives were available.
56
Does the rescue doctrine apply only to saving humans?
No—can apply to pets, property, anything, depending on the risk-benefit balance.
57
Air Rescue helicopter hypo: plaintiff signs “won’t sue for injuries from flight,” gets back injury—does waiver bar suit?
No effect because plaintiff lacked voluntary exposure (no real choice; only way off mountain).
58
In the Air Rescue hypo, what detail is the professor saying you must focus on?
The doctor said the injury was caused by the helicopter trip itself; other dramatic facts are irrelevant to the asked issue.
59
Why is “duress” a tempting answer in the Air Rescue hypo, and what’s the professor’s preferred framing?
Duress is plausible, but the key is A/R elements: no voluntary exposure if she had no choice.
60
Skateboard park waiver example: why is express assumption of risk likely valid there?
Person has a choice: don’t enter the park. Signing is voluntary exposure after knowing terms.
61
Contract vs tort point: why doesn’t “breach of contract” typically get personal injury damages?
Personal injury damages are generally tort damages, not typical contract remedies.
62
Skateboard stairway hypo: Pat trips over unseen skateboard—does assumption of risk apply?
No, because she did not see it → no actual knowledge of that specific risk.
63
In the skateboard stairway hypo, what defense might still apply even if assumption of risk does not?
Comparative negligence (if it was negligent not to see/avoid the skateboard).
64
What duty does Realty owe in the skateboard stairway hypo (per professor)?
A general duty of due care (don’t overstate it as a specific duty “to keep stairs clean”).
65
Why does professor keep saying “don’t fight the question”?
Because exams hinge on the call of the question and stated facts (e.g., “she did not see” = kills A/R).
66
On an essay, do you always analyze duty/breach/causation/damages before defenses?
Usually yes—unless the prompt stipulates negligence is already determined, then you can go straight to defenses.
67
What’s the key trigger to skip the prima facie negligence analysis?
When the call says something like: “It is determined that defendant was negligent; what defenses apply?”
68
Are immunities heavily tested (per professor)?
No—many states have abolished/limited them, making “majority rules” hard to state.
69
Examples of immunities mentioned in the seminar
Charitable immunity, spousal immunity, governmental immunity, parent-child (parental) immunity.
70
In the Neal/Michigan discussion, did the court decide the parent acted reasonably?
No—immunity prevents reaching the negligence merits; it’s a threshold bar.
71
What two situations did Michigan continue to recognize parental immunity (as described)?
(1) Exercise of reasonable parental authority; (2) Exercise of reasonable parental discretion re: providing care (food, clothing, housing, medical/dental, etc.).
72
What is the essential function of an immunity defense?
It can stop the lawsuit even if negligence might exist—you never reach breach/reasonableness on the merits.
73
Why is governmental immunity “hard to boil down” for exams?
It varies drastically by jurisdiction; many places have limited/abolished it.
74
What federal statute did the professor mention regarding suing the federal government?
The Federal Tort Claims Act (FTCA) (with important limits/exceptions).
75
What is the professor’s “most important takeaway” from the seminar?
Assumption of risk requires actual knowledge (subjective) + voluntary exposure.
76
Which defense is more commonly tested than assumption of risk (per professor)?
Comparative negligence.
77
What is the purpose of immunity in Tort Law?
It protects the defendant from tort liability
78
How is immunity different than a defense?
It is not dependent on the plaintiff’s behavior but on the defendant’s status or relationship to the plaintiff.
79
What are the different types of classes that are usually seen in immunity cases?
Charitable Immunity, Spousal Immunity, Paert-Child Immunity, Governmental Immunity.
80
Which immunities have been eliminated in the majority of the states?
Charitable and Spousal
81
What is the difference between a Discretionary function and a Ministerial function?
Discretionary functions are policy-making decisions while Ministerial functions constitute government conduct which implements or executes policy decisions.
82
Are Discretionary functions subject to tort law?
No, because decision-makers are more properly held accountable through electoral politics. Court review of discretionary decisions would interfere with democratic choices.
83
Give an example of why Discretionary functions are immune from liability
It would not be proper to say the legislature was negligent in allocating funds to build a new university campus than a police station.
84
What are some examples of Ministerial functions?
Maintenance of government buildings, or other acts that are negligently performed. They are not manifestations of public policy decisions by the electorate.
85
What is pretty much the only acts the government can be held liable for?
Acts or omissions of investigative or law enforcement officers resulting in claims of assault, battery, false imprisonment, false arrest, abuse of process or malicious prosecution.
86
Is the government immune from strict liability?
Yes.
87
How are cities and local governments viewed?
They are viewed as providing both governmental and proprietary functions.
88
What are proprietary functions relating to local government?
Are not government functions but private corporate activities such as providing cable TV, trash collection, or electricity.
89
What are “immunities” in negligence?
Defenses that can completely bar recovery even if negligence elements are met, based on the defendant’s status/relationship, not the plaintiff’s conduct.
90
How are immunities different from contributory/comparative negligence and assumption of risk?
Those depend on plaintiff’s conduct; immunities depend on defendant’s status or relationship to the plaintiff.
91
What is governmental immunity (aka sovereign immunity)?
Immunity based on the defendant being a government entity; historically from English common law (the sovereign/king “can do no wrong”).
92
Is sovereign immunity absolute today?
No. Many protections have been waived/abrogated by statute allowing some claims (including negligence) against the government.
93
What federal statute primarily waives federal sovereign immunity for some torts?
The Federal Tort Claims Act (FTCA).
94
What is the basic idea of the FTCA?
You can sue the federal government for certain torts when the U.S., if a private person, would be liable under similar circumstances.
95
Give a simple FTCA example from the lecture.
If blocked/poorly maintained fire exits in a government building prevent escape and someone is injured, they may sue the responsible agency under the FTCA.
96
Does the FTCA allow all tort claims?
No. It generally does not allow certain intentional torts (like assault/battery) and does not allow strict liability claims.
97
What type of claim is generally permitted under the FTCA?
Negligence claims (subject to limits like discretionary function immunity).
98
In FTCA negligence cases, what is the “big question” often about?
Whether the act was discretionary (immune) or ministerial (not immune).
99
What is a discretionary function (immunity context)?
A policy-making judgment where officials should be free to decide without judicial second-guessing; generally immune.
100
Provide a discretionary function example from the lecture.
You can’t sue Congress for being “negligent” in passing a law you don’t like.
101
What is a ministerial act (immunity context)?
An act that implements policy and generally must follow required steps—little/no discretion; typically not immune.
102
Give the FDA drug example and why it’s ministerial.
If statutes/regulations require a specific approval process and FDA skips it, that’s likely ministerial because the agency had a required process to follow.
103
Under the FTCA, what two-part test do federal courts use for discretionary function immunity?
(1) Is there a mandatory statute/regulation/policy requiring a specific action? (2) Is the decision susceptible to social, economic, or political policy analysis?
104
What does Part 1 of the FTCA two-part test ask?
Whether a mandatory directive required a specific course of action (leaving no judgment).
105
What does Part 2 of the FTCA two-part test ask?
Whether the decision is the kind Congress meant to shield—one involving social/economic/political policy considerations.
106
Which case illustrates the FTCA two-part test in the lecture?
Whisnant v. United States.
107
What happened in Whisnant (core facts)?
Worker exposed to toxic mold in a naval base food/commissary area; he became sick and sued under the FTCA for negligent inspection/maintenance.
108
What did the government argue in Whisnant?
That the claim was barred by discretionary function immunity.
109
What did the court find about a mandatory inspection rule in Whisnant?
There was no specific statute/regulation/policy that dictated how inspections had to be done.
110
If no mandatory rule, what did Whisnant turn on?
Whether the conduct was the kind of policy decision Congress meant to shield (Part 2).
111
What distinction did the Whisnant court emphasize?
Design vs. implementation: design/policy decisions are usually shielded; implementation/maintenance is usually not.
112
Why did Whisnant’s claim survive immunity?
The alleged negligence involved implementation of safety/health protections (maintenance/safety), not protected policy-making discretion.
113
How is municipal/local government immunity historically different from state/federal?
Municipalities weren’t viewed as “sovereign”; they’re treated more like entities performing governmental and proprietary functions.
114
What are “governmental functions” for municipalities?
Functions like police and firefighting—often protected by immunity.
115
What are “proprietary functions” for municipalities?
Services that could be done privately (e.g., garbage collection)—generally not protected by immunity.
116
Why did some states move away from the governmental/proprietary distinction?
Because it can be hard for courts to draw clean lines; some states replaced it with the discretionary vs ministerial approach.
117
What is charitable immunity?
Historically protected nonprofit charitable organizations from tort claims based on their charitable status.
118
What was the historical justification for charitable immunity?
Protect donor funds for the mission and avoid draining limited resources needed to help beneficiaries.
119
Why has charitable immunity declined?
Many charities now have liability insurance and are well-funded; old justifications are less persuasive.
120
What is the modern trend for charitable immunity?
Most states eliminated it; some keep limited versions (e.g., limited protection against claims by beneficiaries).
121
What is spousal immunity?
Immunity based on the marriage relationship that historically barred lawsuits between spouses.
122
What were the historical reasons for spousal immunity?
Outdated notions (wife as property) and later concerns about marital harmony and insurance collusion.
123
What is the modern trend for spousal immunity?
Most states have eliminated it; remaining states often impose limits.
124
What is parent-child immunity?
Immunity that generally bars tort claims between parents and non-adult children based on the parent-child relationship.
125
Does parent-child immunity still exist today?
Yes, many states still retain some form (though some limit or eliminate it).
126
Which case illustrates parent-child immunity in the lecture?
Neel v. Sewell.
127
What happened in Neel v. Sewell (core facts)?
Father/son burning trash; aerosol can in a bag exploded; son injured and sued father for negligent supervision/failure to warn.
128
What did the court hold in Neel v. Sewell?
Claims for negligent supervision/failure to warn involve parental authority and were barred by parental immunity.
129
What are the key “exceptions” (areas) where parental immunity remains (as described in lecture)?
Situations involving a parent’s exercise of authority over the child or parental discretion regarding the child’s care.
130
What is the big “test idea” across government immunity statutes like the FTCA?
Discretionary functions = immune; ministerial acts = not immune.
131
What’s the high-level recap of charitable + spousal immunity?
Both were historically important, but are largely eliminated today because the old justifications are outdated.
132
What’s the high-level recap of parent-child immunity?
Still common; bars many child-versus-parent negligence claims, especially those based on supervision/authority/care decisions.
133
What’s the high-level recap of governmental immunity?
Governments have immunity, but statutes waive/limit it; analysis often turns on discretionary vs ministerial acts.
Torts II
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