Affirmative defenses

Question 1

P’s conduct

Answer 1

Contrib neg, Comp neg, AOR

Question 2

Contrib neg-Gen Rule

Answer 2

P barred from recovery and gets zero.

Question 3

Contrib neg-Doesn’t apply to….

Answer 3

intentional, willful or wanton, gross neg, and reckless conduct.

Question 4

P’s argument to Contrib

Answer 4

Last clear chance-If D had the opportunity to avoid the accident after the opportunity was no longer available to P, D is the one who should bear the loss

Question 5

Last Clear Chance elements

Answer 5

P’s own neg put them in peril, D discovered/should have discovered position of P, D had time and ability to avoid the injury, D neg failed to do so, and P was injured as result of D’s failure to avoid the injury

Question 6

In NC

Answer 6

Not wearing seat belt is not contrib

Question 7

Comparative neg-Gen rule

Answer 7

P is still contrib but P’s recovery is reduced by the % fault attributable to P

Question 8

Comparative neg-Types

Answer 8

Pure (minority rule)-P is able to recover. Modified (majority rule)-If P’s fault is equal to or greater than Ds, P is completely barred from recovery.

Question 9

Split of Authority-Modified comparative neg

Answer 9

Maj.-P’s fault can’t exceed or be greater than 50% for P to recover. Min.-P’s fault can’t be less than or not as great as 49% for P to recover.

Question 10

Burden of proof

Answer 10

On the D to show P was neg and the neg conduct was proximate cause of P’s injures

Question 11

AOR

Answer 11

Oral or written agreement between the parties which P voluntarily consents to take chances of harm

Question 12

Express AOR

Answer 12

Does exculpatory clause unambiguously excuse D’s neg? Was the risk that cause P’s injury within the scope?

Question 13

Express AOR-EXCs

Answer 13

Party protected by clause intentionally causes harm or engages in acts of reckless, wanton, or gross neg. Grossly unequal bargaining power. Transaction involves public interest.

Question 14

Implied AOR

Answer 14

To successfully assert, D must prove that P had knowledge of the risk, appreciated the risk, and voluntarily assumed the risk

Question 15

Implied AOR can be defense to gross neg or reckless conduct if

Answer 15

D can prove P had the requisite knowledge and appreciation

Question 16

SOL-Gen Rule

Answer 16

Period of time within an action must be commenced after the harm has been discovered. Unless minor, incompetent or insane-disability must be removed first.

Question 17

SOR

Answer 17

Period of time within an action must be commenced after the conduct that caused the harm occurred

Question 18

Discovery Rule

Answer 18

The time of the SOL will begin to run at the time when the person discovers the injury, not when the injury occurs

Question 19

Tolling

Answer 19

Stop the running of the time within which to file for various reasons.  Tolling will not affect SOR

Question 20

Malpractice (SOL and Gen. rule)

Answer 20

SOL 3 years. Deemed to acrrune at time of the occurrence of last act. EXC: Not apparent at origin and injury discovered 2 or more years after occurrence, suit may commence with one year after discovery

Question 21

Malpractice SOR

Answer 21

Action cannot commence more than 4 years after last act of neg. EXC: Foreign objects within one year of discovery, but in no event more than 10 years after last act.

Question 22

Tort Actions SOL

Answer 22

Trespass, Taking/detaining/converting/injuring goods or chattels, neg, assault/battery/FI, fraud or mistake, Product liability

Question 23

Tort Actions SOR

Answer 23

Personal injury or physical damage to prop-when it becomes apparent-and Fraud and mistake=10 years

Question 24

Products liability SOR

Answer 24

for personal injury, death, or damage to property arising out of any alleged defect or failure in relation to a product shall be brought more than 12 years after the date of initial purchase for use or consumption by a consumer

Question 25

If someone dies within the time provided allowed by the SOL

Answer 25

1 year from the time of death even if it exceeds the SOL

Question 26

Real prop improvements SOR

Answer 26

6 years

Question 27

Interspousal immunity

Answer 27

It’s abolished in most jurisdictions

Question 28

Parent child immunity

Answer 28

Parents are immune to torts by their children. EXC: Intentional/malicious/willful wanton conduct. Emancipate minor. Statute that allows minor to sue. Motor vehicle accidents

Question 29

Charitable immunity

Answer 29

Immunity abolished. NC EXC: Volunteers immune from civil liability unless conduct gross neg, intentional.

Question 30

Employer/Employee immunity

Answer 30

Employers covered by worker’s comp statute are immune in tort to an employee for injuries by accident arising out of or occurring in the course of the employment

Question 31

Employer/Employee EXC

Answer 31

acted intentionally or substantially knew that the harm would occur

Question 32

Govt immunity-Gen. Rule

Answer 32

Govt entities are immune unless they waive it. Must consent to it.

Question 33

State or agency of NC-Gen. Rule

Answer 33

Cant sue state unless state consents or waives immunity

Question 34

NC Consents to be sued under certain circumstances

Answer 34

Has to be filed in NC Industrial Commission. Only tort can sue NC for is Neg. State employee must been acting in scope. No contrib on part of P. Cap 1 Million. If State has insurance in excess of cap, courts construe as consent.

Question 35

Local municipalities (have to look at?)

Answer 35

Whether proprietary function or Govt’ function?

Question 36

Proprietary function

Answer 36

Govt immunity is not issue. EXC: If local agency is acting like private entity then they should be able to be sued as such.

Question 37

Factors: Whether local agency acting like private entity

Answer 37

Is it traditionally done by govt?, Does it have to be done by govt?, Did charge fee?, If so, profit?

Question 38

Govt function

Answer 38

Govt agency can consent to be sued if they purchase liability insurance as long as it covers type of claim being brought. Immunity to extent of insurance

Question 39

In NC Can bring suit

Answer 39

in superior court

Question 40

Local govt/Municipality-Failure to protect (Gen rule)

Answer 40

no liability for failure of law enforcement to protect specific individuals. There is a duty to protect the public in general.

Question 41

Failure to act for third party-Public duty doctrine

Answer 41

No liability for failure to protect from harm caused by 3rd party

Question 42

EXC to Public duty doctrine

Answer 42

1. Special relationship 2. Promise, detrimental reliance & causation 3. Special duty created by statute