Torts · Defenses Negligence

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MBE Torts: Defenses Negligence

Explore the various defenses available in negligence claims as tested on the MBE, including contributory negligence, comparative negligence, and assumption of risk.

Overview

In negligence claims, defendants have several defenses available that can limit or completely bar recovery for the plaintiff. Understanding these defenses is crucial for MBE test-takers, as they frequently appear in exam questions. Key defenses include contributory negligence, where a plaintiff's own negligence contributes to their injury, and comparative negligence, which apportions fault between parties based on their respective negligence. Additionally, defenses such as assumption of risk, where a plaintiff knowingly engages in risky behavior that leads to injury, play a vital role in negligence cases.

Each jurisdiction may vary in how these defenses are applied, making it essential for students to familiarize themselves with both general principles and specific state laws. The MBE tests the application of these defenses through fact patterns that require students to analyze the circumstances and the behavior of the involved parties to determine potential liability and recovery thresholds.

Key Rules
  1. Contributory negligence can bar recovery if the plaintiff's negligence is found to be a substantial factor in the harm incurred.
  2. Comparative negligence reduces the recoverable damages in proportion to the plaintiff's fault.
  3. In jurisdictions that follow modified comparative negligence, recovery may be barred if the plaintiff's fault equals or exceeds that of the defendant.
  4. Assumption of risk may be express (through written agreements) or implied (based on the plaintiff's conduct and knowledge of the risk).
  5. In some states, the doctrine of last clear chance allows a negligent defendant to be held liable even if the plaintiff was also negligent if the defendant had the last opportunity to avoid the accident.
Common Question Patterns
  • Analysis of a fact scenario to determine the applicability of contributory or comparative negligence.
  • Assessment of whether the plaintiff assumed the risk in a given situation.
  • Determining if the last clear chance doctrine applies based on the facts provided.
Practice Questions

1. A cyclist was riding on a public road without a helmet and collided with a car that failed to yield at a stop sign. The cyclist suffered a concussion. In a negligence suit against the driver, the court finds the cyclist was 30% at fault. If applicable state law is pure comparative negligence, what is the maximum recovery for the cyclist if the total damages are $100,000?

A. A) $70,000(Correct)

B. B) $100,000

C. C) $30,000

D. D) $0

Explanation: Under pure comparative negligence, the cyclist can recover damages reduced by their percentage of fault, which is 30%. Therefore, the recovery is $100,000 - $30,000 = $70,000.

2. At a baseball game, a spectator was injured by a foul ball. The spectator had been warned about the risk of foul balls. If the spectator sues the team for negligence, which defense is likely to succeed?

A. A) Contributory negligence

B. B) Assumption of risk(Correct)

C. C) Comparative negligence

D. D) None of the above

Explanation: The defense of assumption of risk is likely to succeed as the spectator was adequately warned of the risk associated with attending a baseball game, where foul balls are common.

3. A man was injured when he slipped and fell in a grocery store due to a wet floor without any warning sign. However, he was running in the store at the time of his fall. If he sues the store for negligence, what defense might the store assert?

A. A) Contributory negligence(Correct)

B. B) Strict liability

C. C) Assumption of risk

D. D) None of the above

Explanation: The store could assert contributory negligence since the man was running, a form of conduct that may have contributed to his injury.

4. During a hiking trip, a woman fell and broke her ankle while climbing a rocky ledge without any safety gear. She had signed a waiver before the trip acknowledging the inherent risks. What is her best defense against a negligence claim against the adventure company?

A. A) Contributory negligence

B. B) Assumption of risk(Correct)

C. C) Modified comparative negligence

D. D) None of the above

Explanation: The woman is likely to be barred from recovery based on the assumption of risk, as she acknowledged and accepted the inherent risks associated with the activity.

5. A plaintiff was injured after slipping on a wet floor in a bar. The bar had recently mopped the floor and posted signs to alert patrons. If the plaintiff sues, which defense is most likely to be successful for the bar?

A. A) Contributory negligence(Correct)

B. B) Assumption of risk

C. C) Comparative negligence

D. D) None of the above

Explanation: The bar may successfully argue contributory negligence if the plaintiff was not paying attention to the warning signs or was engaging in conduct that contributed to the injury.

Test-Taking Tips
  • Read each question carefully and identify the key facts that may indicate contributory or comparative fault.
  • Be familiar with the jurisdictional differences concerning defenses; know which rule applies under different fact patterns.
  • Practice applying the defenses to different scenarios to increase familiarity with how they are presented on the exam.

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