Defenses in Negligence - Admission/Application Essay Example

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Typically, a defendant in a negligence suit tries to negate one of the elements of the plaintiff's cause of action. There are four elements of negligence namely duty of care, breach of duty, causal limit liability based on alleged negligence. Two of these defenses are contributory or comparative negligence and assumption of the risk…
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Defenses in Negligence
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Download file to see previous pages Contributory negligence has thus been defined as conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause in bringing about the plaintiff's harm. Contributory negligence is therefore a complete defense to negligence. (Torts Law Capsule Summary, Chapter 15)
However, the court may ignore the plaintiff’s negligence if the defendant's negligence occurred after the plaintiff's contributory negligence under the last clear chance doctrine. This was established in the case of Davies v. Mann, 10 M&W 546, 152 Eng. Rep. 588 (1842). In this case scenario in question, after Tanya taking the risk, the Inn drained water without confirming whether there were people using the pool at the time thus causing the injury. Further, they did not notify the plaintiff or her hosts that the pool could be drained remotely or that the drains were dangerous when the pumps were running. This may not however be the case in the event that the court replaces contributory negligence with comparative negligence. (Torts Law Capsule Summary, Chapter 15)
Should the court rely on pure comparative negligence Tanya can recover some percentage from the Inn’s owner regardless of the extent of her own negligence as seen in Li v. Yellow Cab Co., 532 P.2d 1226 (Cal. 1975). However, if the court applies modified comparative negligence, Tanya will be allowed a partial recovery until she is either more negligent (greater than 50% at fault) than the defendant or equal to the negligence of the defendant. This is especially so since there was a clear sign displayed indicating that usage of the pool was dangerous and was at one’s own risk. Further, since Tanya is a minor, she should have accessed the pool under the supervision of Tony’s parents. (Torts Law Capsule Summary, Chapter 15) The defendant can also rely on the defense of assumption of risk which states that the plaintiff has knowingly assumed the risk of the harm that was caused.  There are three basic elements to the assumption of risk. The plaintiff must (1) know a particular risk and (2) voluntarily (3) assume it as seen in Murphy v. Steeplechase Amusement Co., Inc., 166 N.E. 173 (N.Y. 1929). In this case there was implied assumption of risk as opposed to express assumption of risk since the plaintiff's voluntary exposure to risk is derived merely from her behavior, and not from explicit assent. Therefore, implied assumption of risk is absorbed into comparative negligence thus allowing the jury to treat assumption of risk as a partial defense as seen in Knight v. Jewett, 834 P.2d 696 (Cal. 1992). It bars recovery for a plaintiff who has assumed the risk involved in an obviously dangerous activity but proceeded to engage in the activity anyway. In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. The plaintiff must also voluntarily accept the risk involved in the activity. Therefore, Tanya by entering the swimming pool she assumed the risk of getting injures because it is a known danger that swimming pools pause a danger if enough caution is not taken. Further, the signs around the fence indicated how dangerous the pool was and emphasized that people were ...Download file to see next pagesRead More
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