Under the all-or-nothing rule of contributory negligence, a plaintiff is completely barred from recovering damages if his own unreasonable conduct contributed to their occurrence. Since Burger saw Arnold in the intersection, he was probably guilty of contributory negligence.
The doctrine of last clear chance does no more than negate the effect of a plaintiff’s contributory negligence. If a defendant had “the last clear chance” to avoid injuring the plaintiff, the defendant might be liable in spite of the plaintiff’s negligence. The plaintiff never loses a case, however, simply because that plaintiff had the “last clear chance” to avoid being injured. A is, therefore, incorrect. C and D are incorrect for two reasons: first, the presumption which results from a defendant’s violation of a statute (sometimes called negligence per se) may ordinarily be rebutted by proof that the violation resulted from circumstances beyond the defendant’s control; and, second, even if Arnold could not rebut the presumption that he was negligent, Burger’s contributory negligence is still available to him as a defense.
Although the phrase AS IS disclaims implied warranties of merchantability or fitness for a particular purpose, it does not free a seller from the duty of acting reasonably. Since it probably was foreseeable that the purchaser of a refrigerator would plug it in even after being advised that it did not work, Fridge had a duty to take reasonable precautions against the harm which might result therefrom. If her failure to warn Pally was unreasonable, it was negligence which was a proximate cause of harm and would result in liability.
B is incorrect because the phrase AS IS is an effective disclaimer of the implied warranty of merchantability (i.e., fitness for ordinary use). C is incorrect because Fridge is still liable under a negligence theory. D is based on a misinterpretation of the doctrine of “last clear chance” which accomplishes nothing more than undoing the effect of a plaintiff’s contributory negligence. (If a defendant had “the last clear chance” to avoid injuring the plaintiff, the defendant might be liable in spite of the plaintiff’s negligence. The plaintiff never loses a case, however, simply because that plaintiff had “the last clear chance” to avoid being injured.)