Full access allows:
- Solve all tests online without limits;
- Remove all advertisements on website;
- Adding questions to favorite list;
- Save learning progress;
- Save results of practice exams;
- Watching all wrong answered questions.
- Homepage »
- Torts »
- Negligence
35. Will the plaintiff prevail?
The plaintiff filed a personal injury action against the defendant in a jurisdiction in which contributory negligence is a bar to recovery. At trial, the jury finds that the defendant was more at fault than the plaintiff, and that the defendant had a last clear chance to avoid the accident. However, the jury also found that the plaintiff was the legal cause of the accident, and that she assumed the risk by speeding.
A plaintiff, who was driving at an excessive speed, applied her brakes to stop at a traffic light. Due to damp, fallen leaves, her car skidded and came to a halt perpendicular to the roadway. The defendant, who was also driving at an excessive speed and was immediately behind the plaintiff, saw the plaintiff's car perpendicular to the roadway. Although the defendant had sufficient distance to come to a slow, controlled stop, he decided not to slow down but, rather, to swerve to the left in an effort to go around the plaintiff's car. Due to oncoming traffic, the space was insufficient and the defendant's car collided with the plaintiff's car, severely injuring the plaintiff.
Comments (0)
There are no comments at the moment. If you found an error or think question is incorrect, tell everyone about it
Only signed in users can write comments
Signin
B is correct. Here, the plaintiff was negligence by driving at an excessive speed, and thus she was contributorily negligent. However, the defendant had time to safely stop and opted not to do so — thus, he had the last clear chance to avoid the injury but failed to do so. Therefore, contributory negligence is not a bar to the plaintiff's recovery. Although the plaintiff was found to have «assumed the risk by speeding,» assumption of the risk normally reduces recovery in a negligence action instead of barring recovery.
A is incorrect. This answer choice is based on the wrong law. The standard in this answer choice is modified or partial comparative negligence. That doctrine states that a defendant is not liable for his or her negligence if the plaintiff was as negligent or more negligent than the defendant (how negligent the plaintiff must be compared to the defendant varies by jurisdiction). However, the question states that contributory negligence applies, not any form of comparative negligence.
C is incorrect. As explained above, the plaintiff's negligence would bar recovery because contributory negligence applies. However, because the defendant had the last clear chance to avoid the accident, the plaintiff's negligence is not a bar to recovery.
D is incorrect. Assumption of the risk in a negligence action normally only reduces recovery unless it is an express assumption of the risk. The facts here do not indicate that this rose to that level.