Affirmative Defenses Flashcards
How is contributory negligence defined?
Definition: “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.”
+ Plaintiff owes duty to self
True or false: Most courts have done away with contributory negligence.
True.
True or false: To prove contributory negligence, only but for causation needs to be evidenced.
False. Plaintiff’s conduct must be an actual cause of plaintiff’s harm AND must also be proximate cause
Does a P or D have the burden of showing contributory negligence?
D. It’s an affirmative defense: “I did it, but they played a part in it, too.”
When is contributory negligence not a successful affirmative defense?
Not appropriate when D’s misconduct more serious than P’s negligence (recklessness or willful misconduct)
How do statutes affect the contributory negligence defense? Give an example.
Statutes may be passed to protect some group against its ability to protect itself, so may bar a defense of contributory negligence
Ex: statute that bus drivers must instruct students in crossing the street
How does recklessness affect contributory negligence?
Recklessness shifts to comparative fault/comparative recklessness in certain situations. Serves as a limiting principle.
What is the last chance doctrine? Does it apply to p and d’s?
Last Clear Chance Doctrine: For P’s only, not D’s in negligence cases
1) D claims contributory negligence
2) P responds with last clear chance
3) Even if P is negligent, D had “last clear chance” to avoid the accident but failed to take it → Defendant’s negligent act is the final decisive cause of the accident
What happens if D’s negligent act occurred after P’s contributory negligence?
Instructs the court to ignore the plaintiff’s contributory negligence if the defendant’s negligence occurred after the plaintiff’s contributory negligence.
When do courts reject the last clear chance doctrine?
Most jurisdictions reject the last clear chance doctrine when replacing contributory negligence with comparative negligence.
If a D can avoid an accident, can he claim an affirmative defense with last clear chance?
No. If D can avoid the accident, they cannot invoke contributory negligence.
Explain why contributory negligence is imputed from a public policy perspective. Give some examples.
Will not impute contributory negligence on non-negligent party for others negligence.
Ex: passengers on bus harmed by another driver’s negligence and bus driver’s contributory negligence
Ex: child injured by another’s negligence, and parent negligent as well by not watching child
+ Most significant example is respondeat superior
What are derivative claims in contributory negligence?
Derivative → relationship to the negligent act/party
+ Impute negligence for derivative claims
+ Loss of consortium, bystander emotional distress, wrongful death
Explain how subjectivity comes into play with contributory negligence
+ Jurisdictions allow more subjectivity for P’s to undermine contributory negligence
+ Juries tend to be sympathetic to P’s, even when contributory negligence is found
+ Will allow for P’s recovery even if contributory negligence is found as QOL
What is comparative negligence? How does it affect a negligence claim?
Negligent plaintiff’s recovery depends on how serious her negligence was in comparison to the defendant’s.
If proven, REDUCES damages but does not bar it (thus, not a complete defense)
Who determines the % of comparative negligence?
Jury sets % of fault caused by plaintiff’s and defendant’s negligence
What are the three jurisdictions for comparative negligence?
1) Pure Comparative Negligence
2) Greater Fault Bar
3) Equal Fault Bar
4) PLUS Classic Contributory negligence, which bars a P’s ability to collect damages
What % of fault bars a P’s ability to recover in comparative negligence cases?
Contributory Negligence; 1%= complete bar to recovery
Pure: % allocation
Equal Fault: 50% allocation = complete bar to recovery
Greater Fault: 51% allocation = complete bar to recovery
What is a jurisdiction examining to determine comparative fault/negligence/responsibility?
1) Comparative negligence jurisdiction = negligence, recklessness
2) Comparative fault jurisdiction = negligence, recklessness, intentional torts
3) Comparative responsibility jurisdiction = negligence, recklessness, intentional torts, and strict liability → (most states moving towards this)
Compare between pure and modified comparative fault systems
Courts usually choose Pure
Legislatures usually adopt modified
Modified Versions: If multiple defendants, their negligence will be aggregated
Is assumption of risk an objective or subjective test?
Subjective
What are the three basic elements to assumption of risk?
The plaintiff must (1) know a particular risk and
(2) voluntarily
(3) assume it.
What are the two classifications for assumption of risk?
Express Assumption of Risk
Implied Assumption of Risk
What is an express assumption of risk?
Contracts exculpatory clause waiving negligence
What is an implied assumption of risk?
1) Plaintiff must have actual knowledge of the specific risks of the harm
2) Plaintiff must appreciate the magnitude of the danger; AND
3) Plaintiff must freely and voluntarily encounter the risk
How do courts deal with assumption of risk and spectators or amateur players at sporting events?
+ Usually dealt with by statute
+ Assume risks associated with the game (i.e. being tackled in football)
+ Do not assume risks of someone exceeding the bounds of the game (i.e. being punched in the face after a play)
True or false: most states employ comparative fault to apportion damages for enhanced harm resulting from failure to mitigate.
True. But it can be complicated.
Ex: D’s conduct causes $150K damages to P
Jury appoints 20% to P and 80% to D, but then P’s failure to mitigate increases the amount of damages by $50K.
With enhanced harm, P and D are both at 50/50.
Do express agreements waiving negligence avoid D’s liability?
Not necessarily.
What did the waiver say –> did it mention negligence, did it address only inherent risk?
Did D cause the risk?
What would public policy say –> who’s in control, can P’s modify the terms, is it an essential service to the public, is D making a profit?
What are the two applied assumptions of risk?
1) Primary - P knew what they were getting into. Unless D’s activities are outside of the inherent risk, D is not culpable (see secondary)
2) Secondary - P encounters risk due to D’s negligence.
True or false: Primary and Secondary Implied negligence are true affirmative defenses.
False. Only Secondary.
Primary: Not a true affirmative defense. No unreasonable conduct, no breach.
Secondary: True affirmative defense b/c asserted only after P establishes PF case of negligence.
What’s the difference between assumption of risk and contributory negligence?
Contributory negligence –> unreasonable conduct. Objective test.
Assumption of risk –> subjective test, looking at parties’ credibility
What are the three jurisdictions that you might come across when dealing with assumption of risk v. contributory negligence?
1) Merging Assumption of Risk and Comparative Negligence → depends on P’s negligence %
2) Complete and separate defense → complete bar to recovery
3) Abolish Assumption of risk
