Affirmitive Defense for Negligence

Question 1

3 Step Analysis for

Contributory Negligence

Answer 1

1. Is P at fault?
2. How much is P at fault? (does not apply in traditional bar, comparative fault)
3. What effect of P’s being at fault?

2 – does not apply in traditional bar, comparative fault

Question 2

3 element of Step 1 for CN

Step 1: What proves P is at fault

Answer 2

1. Breach
2. C/F
3. Proximate cause of their harm (foreseeability)

Question 3

What Step 2 for CN consists of

Step 2: How much is P at fault?

Answer 3

Compare evels of unreasonableness; who breached more, which was more unreasonable

not about cause; there is less emphasis on fault

Question 4

Traditional CN and CF bars:

Step 3: Effect of P’s Fault

Answer 4

Traditional CN Bar: any fault bars damanges
Pure CF: % fault reduces damanges
49 MCF: Barred if greater than 49%
50 MCF: Barried if greater than 50%

MCF: modified comparative fault
49 MCF & 50 MCF: recovery reduced by P % fault or if barred
Exactly 50% for 50 MCF = recover 50% damanges

Question 5

If risk is expressly assumed, then..

Answer 5

Barred.

Question 6

Elements

Implied Assumption of Risk

Answer 6

1. P knew & appreciated risk
2. P volultarily entered rism

Question 7

Traditional Rule for IAR

(IAR – Implied Assumption Risk)

Answer 7

ANY assumed risk bars from damange recovery

Question 8

How IAR is treated and how to approach…

Minority: CF states & IAR

Answer 8

Complete bar
How to approach: deterine if P implictly assumed a risk

Question 9

How IAR is treated and how to approach…

Majority: CF states & IAR

Answer 9

IAR irrelevant
How to approach: would a RP done the same

Does not matter if P implictly assumed a risk