Affirmative defenses Flashcards
P’s conduct
Contrib neg, Comp neg, AOR
Contrib neg-Gen Rule
P barred from recovery and gets zero.
Contrib neg-Doesn’t apply to….
intentional, willful or wanton, gross neg, and reckless conduct.
P’s argument to Contrib
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
Last Clear Chance elements
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
In NC
Not wearing seat belt is not contrib
Comparative neg-Gen rule
P is still contrib but P’s recovery is reduced by the % fault attributable to P
Comparative neg-Types
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.
Split of Authority-Modified comparative neg
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.
Burden of proof
On the D to show P was neg and the neg conduct was proximate cause of P’s injures
AOR
Oral or written agreement between the parties which P voluntarily consents to take chances of harm
Express AOR
Does exculpatory clause unambiguously excuse D’s neg? Was the risk that cause P’s injury within the scope?
Express AOR-EXCs
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.
Implied AOR
To successfully assert, D must prove that P had knowledge of the risk, appreciated the risk, and voluntarily assumed the risk
Implied AOR can be defense to gross neg or reckless conduct if
D can prove P had the requisite knowledge and appreciation
SOL-Gen Rule
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.
SOR
Period of time within an action must be commenced after the conduct that caused the harm occurred
Discovery Rule
The time of the SOL will begin to run at the time when the person discovers the injury, not when the injury occurs
Tolling
Stop the running of the time within which to file for various reasons. Tolling will not affect SOR
Malpractice (SOL and Gen. rule)
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
Malpractice SOR
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.
Tort Actions SOL
Trespass, Taking/detaining/converting/injuring goods or chattels, neg, assault/battery/FI, fraud or mistake, Product liability
Tort Actions SOR
Personal injury or physical damage to prop-when it becomes apparent-and Fraud and mistake=10 years
Products liability SOR
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
