Looking back at (and ahead to) our discussion of defenses to negligence, as well as at the

chapter next week on Joint Tortfeasors, consider the following:

Defenses to Negligence

1.  What is the defense of contributory negligence? What effect did/does it have on

plaintiff’s right to recover?
2. What is the last clear chance doctrine? Why was it developed? When is it applied and
what is its effect?
3. Why was comparative fault adopted? What forms of comparative fault have been
adopted by jurisdictions? What effect does the adoption of comparative fault have on
the right of the plaintiff to recover? What other decisions confront a jurisdiction that has
decided to adopt comparative fault?
4. Assess the following:

Plaintiff has damages of $100,000 as the result of an accident caused by negligence of

defendants. Plaintiff has also been found to have been negligent and her negligence has
causally contributed to her injury. 

A. In a contributory negligence jurisdiction, what can plaintiff recover from defendants?

B. Assume you are in a comparative fault jurisdiction, and a jury determines fault as
indicated below:

P: 30%; D1: 40%; D2: 30%. 

How much can P recover and from whom in a pure comparative fault regime, a modified
less than comparative fault regime, and a modified not greater than comparative fault
regime? What else do you need to know?

5. What is the defense of Assumption of the Risk? What effect does it have on plaintiff’s
right to recover? What are its elements? What forms of A/R have been identified and
identify examples of each. What effect, if any, does the adoption of comparative fault
have on these forms of A/R?
6. What are statutes of limitation? How do they differ from statutes of repose? What
issues are raised in conjunction with statutes of limitation? What is the discovery rule?
7. How do immunities differ from privileges? What justifications have been offered to
support the recognition of inter spousal immunity? Does such immunity still exist? In
what contexts has it been partially abolished? 
8. What justifications support the recognition of parent-child immunity? Has it been
retained? Abolished: partially or fully? If retained in part, in what contexts? Why?
 9. Governmental immunity. What governmental entities have been accorded immunity?
Why? Has the immunity of states been retained? Abolished? Are there any constraints
on state immunity to tort suits? 
10. Are municipalities immune from suit? Why/why not? When are they immune?
11. On what basis has the U.S. government been deemed immune from tort liability? Is the
government always immune from suit? If not, when is it immune? What is the source for
our determination of the government’s amenability to suit at the federal level?
12. What is the discretionary function exception? When does it apply? What  other
important exceptions to the amenability of the federal government to suit can be
identified?

Joint Tortfeasors

1.  What is joint and several liability? In what contexts is it assessed? What policies justify
its application? What circumstances justify its application (what are the bases for joint
and several liability)?
2. What is several liability? How does it differ from joint and several liability?
3. How has the adoption of comparative fault affected the application of joint and several
liability? Why?
4. What is the effect of a release of one joint Tortfeasor on the liability of other joint
Tortfeasors?
5. What is the effect of settlement by one joint TF with the plaintiff on the amount owed
the plaintiff by other joint Tortfeasors? At common law? In a jurisdiction adopting
comparative fault?
6. What is contribution? From whom can it be sought and when can it be sought? How is
the amount of contribution determined? At common law? In a jurisdiction adopting
comparative fault?
7. What is the remedy of indemnity? When is indemnity rather than contribution
appropriate? What impact does it have on the amount one joint TF can recover from
another?
8. What impact, if any, does the immunity of one of the defendants have the calculation of
plaintiff’s recovery or on defendant’s rights?
9. What is satisfaction of a judgment and what impact does it have on plaintiff’s right to
recover?