California First-Year Law Students' Exam (Baby Bar) — MCTortsMedium
A pedestrian was walking on a public sidewalk when a poorly maintained tree, located on adjacent private property, suddenly fell and injured the pedestrian. The property owner was aware that the tree had a severe internal rot and was leaning precariously but had taken no action to remove it or warn others. Which defense is the property owner LEAST likely to successfully assert in a negligence claim by the pedestrian?
- AComparative Negligence
- BContributory Negligence
- CNone of the above, as the owner's knowledge makes defenses difficult.
- DAssumption of Risk
Show answer & explanationAnswer & explanation
Correct answer: D. Assumption of Risk
Assumption of Risk requires the plaintiff to knowingly and voluntarily encounter a known risk. Since the pedestrian was simply walking on a public sidewalk and had no knowledge of the tree's dangerous condition, they could not have assumed the risk. The owner's awareness of the danger and failure to act makes it difficult for them to argue defenses that rely on the plaintiff's knowledge or fault.
Why the other options are wrong
- A. Comparative negligence might be argued if there was any small fault by the pedestrian, but the owner's primary fault makes this defense weak.
- B. Contributory negligence is less likely here as the pedestrian was on a public sidewalk, but theoretically, one could argue some unforeseen distraction, though highly unlikely to succeed.
- C. This option is too absolute. While difficult, it's about which specific defense is *least* likely, and assumption of risk stands out due to the lack of plaintiff knowledge.
Assumption of Risk (Express/Implied)
A defense to negligence where the plaintiff knowingly and voluntarily encounters a known risk of harm.
- Express assumption of risk: via contract or explicit agreement.
- Implied assumption of risk: inferred from plaintiff's conduct and knowledge of the risk.
- Requires actual knowledge of the risk and voluntary choice to encounter it.
Memory trick: C-C-A: Contributory, Comparative, Assumption.