Affirmitive Defense for Negligence (MI(E)SC)

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

2 Elements

Implied Assumption of Risk

Answer 6

1. P knew & appreciated risk
2. P voluntarily entered it

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: determine 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

Question 10

Mitigation and Avoidable Consquences

Direct Reduction

Two approaches, must be one or other

Answer 10

subtract any damages due to P’s unreasonable failure to mitigate

Common example: post-injury conduct, failing to listen to dr

Question 11

Mitigation and Avoidable Consquences

Fault Assignment

Two approaches, must be one or other

Answer 11

jury assign P % of fault based on unreasonable failure to mitigate

Common example: post-injury conduct, failing to listen to dr

Question 12

Different between Direct Reduction and Fault Assignment in statues

Answer 12

Depends on what falls under the defintion of fault
DR (default): if fault does not include failure to mitigate
FA: if fault does include failure to mitigate

Question 13

Statute of Limitations

Accrual Date

Answer 13

date when cause for potential legal action takes place

Question 14

Statute of Limitations

Discovery Rule

Answer 14

time period for filing begins when the injured party discovers, or reasonably should have discovered, their injury