Affirmative Defenses to Negligence Flashcards
Contributory Negligence
Plaintiff was also negligent
No recover
Must satisfy all elements of Negligence
Only used in 4 states
Exceptions to Contributory Negligence
Rescue Doctrine = Forgive negligent acts by rescuers
Last clear chance = If defendant could have stopped the accident, plaintiffs negligent act is forgiven
Plaintiffs illegal activities
Comparative negligence
Pure
Modified
Pure Comparative Negligence
Compare the fault of the plaintiff versus the defendant
Plaintiff relieves the defendants % of fault
Modified Comparative Negligence
Only review up to or = to 50% fault
Apportionment of Liability
Up to the jury to apportion liability upon the parties
Allocating responsibilities to the defendant for policy reasons
Plaintiff incapacity
Structural safety
Role definition
Process values
Fundamental values
Autonomy + self risk
Assumption of Risk
Express
Implied
Express Assumption of Risk
Signing of a waiver
Must be in an equal position
Have other services available
Agreement was clear (conspicuously and unequivocally expressed)
Exceptions to express assumptions of risk
Intentional torts
Service is essential or monopolistic
Implied assumption of risk
Most states got rid of it when adopted comparative fault (now just comparative negligence)
Primary and secondary assumptions
Primary Assumption of Risk
Primary Responsibility
No duty is owed
Secondary Assumption of Risk
Not part of the Job
Duty is owed
Statute of Limitations
Starts from the date of the injury
Continuous treatment
Starts when the treatment is finished
Even if the injury happened in the beginning
