CHAP5 Defences to Neg Flashcards
1A: How Negligence Defenses Are Used
- Negligence defenses are used only by ?
- Negligence defenses are applied only in ?
-Negligence defenses are used only by >the defendant against the plaintiffresponse to the plaintiff’s allegations that the defendant acted negligently or with willful and wanton negligence, not to claims of intentional actions
1A: How Negligence Defenses Are Used
- Once a plaintiff alleges the defendant’s negligence, what?
- When negligence has been alleged, what is the first question to ask yourself?
- both parties’ failure to be careful may be at issue.
- Ask who is alleging negligence and who is alleged to have been negligent.
2: List the defenses to negligence covered in this chapter:
- Statutes of Limitations
- Contributory Negligence
- Last Clear Chance
- Comparative Negligence
- Assumption of Risk
2A: Statutes of Limitations
- How do statutes of limitations function?
- How do states statutes of limitation vary?
- Statutes of limitations prescribe the time within which a plaintiff may file a lawsuit against a defendant.
- States’ statutes of limitations vary in >number of years< and among the different *types of negligence.
2A: Statutes of Limitations
-Whats the important thing to remember about Statutes of limitations?
-There is no remedy if one fails to file the lawsuit within the period set out in the statute of limitations.
2B: Contributory Negligence
Defined
- Plaintiff’s own negligence *contributed to his or her injuries.
- *Elements of contributory negligence include duty, breach, causation, and injury.
- In >some jurisdictions
2B: Contributory Negligence
Last Clear Chance
-Last clear chance is a >rebuttal to the contributory negligence defense< when a defendant had the last opportunity to avert harm and failed to do so.
2C: Elements of Comparative Negligence
calculation
- The plaintiff’s negligence contributed to his or her own injuries.
- Calculation of the percentage of the plaintiff’s negligence that contributed to his or her injuries.
- Calculation of the percentage of the defendant’s negligence that produced the plaintiff’s injuries.
2C: Elements of Comparative Negligence
The Balancing Act 1/2
-Comparative negligence balances the degrees of each party’s negligence that produced the plaintiff’s harm.
- Comparative negligence balancing is usually measured in percentages of negligence.
- -This is called >culpability factoring or liability apportionment
2C: Comparative Negligence
The Balancing Act 2/2
- The trier-of-fact decides the percentages in comparative negligence.
- There is no exact formula to establish percentages.
- Comparative negligence is sometimes criticized as being arbitrary and capricious.
- The trier-of-fact decides the percentages in comparative negligence.
- There is no exact formula to establish percentages.
- Comparative negligence is sometimes criticized as being arbitrary and capricious.
2D: Assumption of Risk
- Assumption of risk is a defense to negligence that involves:
- -The plaintiff’s voluntary assumption of a known risk
- -A full appreciation of the dangers involved in facing that known risk
- Assumption of risk is a defense to negligence that involves:
- -The plaintiff’s >voluntary assumption< of a known risk
- -A >full appreciation of the dangers< involved in facing that known risk
T/F
Last clear chance is a response to assumption of risk.
False
