Comparative Negligence & Assumption of Risk - Next Generation Bar Exam

1. Under traditional contributory negligence, what is the effect of any plaintiff fault?

   It completely bars recovery. Only a few jurisdictions retain the rule.

2. Under pure comparative negligence, what is the effect of a plaintiff's fault?

   Damages are reduced by the plaintiff's percentage of fault, even if it exceeds the defendant's. A plaintiff 90 percent at fault recovers 10 percent.

3. What is the effect of comparative negligence on a defendant's liability for intentional torts?

   The plaintiff's negligence generally does not reduce recovery for an intentional tort. Comparative fault principles apply chiefly to negligence and strict liability.

4. A plaintiff is 60 percent at fault and the sole defendant is 40 percent at fault. What does the plaintiff recover in a modified comparative negligence jurisdiction?

   Nothing, because the plaintiff's fault exceeds the defendant's. Both versions of modified comparative fault bar recovery when the plaintiff is more at fault.

5. What must a defendant show to establish that a plaintiff assumed a risk?

   That the plaintiff knew of the specific risk and voluntarily accepted it. General awareness of danger is insufficient.

6. What is the effect of a plaintiff's comparative fault in a strict products liability action under the modern approach?

   It reduces the plaintiff's damages. Most jurisdictions apply comparative fault in products cases.

7. A plaintiff, seeing that a stairway is broken and that another route is available, uses the stairway and falls. In a comparative fault jurisdiction, how is this assumption of risk treated?

   As comparative fault reducing the plaintiff's damages. Implied secondary assumption of risk is merged into comparative negligence.

8. What is implied primary assumption of risk?

   A no-duty rule for inherent risks of an activity the plaintiff chose to participate in. For example, a spectator generally cannot recover for being hit by a foul ball in the stands.

9. A plaintiff is 40 percent at fault and suffers $100,000 in damages. How much does the plaintiff recover under pure comparative negligence?

   $60,000. Damages are reduced by the plaintiff's 40 percent share.

10. What is implied secondary assumption of risk?

    A plaintiff's knowing and voluntary encounter with a risk created by the defendant's negligence. In most comparative fault jurisdictions, it is merged into comparative negligence.

11. What is the last clear chance doctrine?

    A contributorily negligent plaintiff may recover if the defendant had the last opportunity to avoid the harm. It developed to soften contributory negligence and is largely obsolete under comparative fault.

12. Under modified comparative negligence, when is a plaintiff barred from recovery?

    When the plaintiff's fault exceeds the defendant's, or equals it in some states. The 50 percent and 51 percent bar versions differ on ties.

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