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Contributory and AR Flashcards

1
Q

Butterfield holding

A

P own fault for not seeing obstruction, so no recovery (contributory negligence)

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2
Q

Pros of Contributory Negligence 1

A

Incentivize care

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3
Q

Pros of Contributory Negligence 2

A

Less interference in private lives

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4
Q

Pros of Contributory Negligence 3

A

If liability follows fault, P also unclean hands

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5
Q

Pros of Contributory Negligence 4

A

Weakens D causation

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6
Q

Pros of Contributory Negligence 5

A

Hard to measure amount of fault, administrability

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7
Q

Contributory negligence RST, is conduct which… 1

A

Falls below the standard to which he should conform for his own protection

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8
Q

Contributory negligence RST, is conduct which… 2

A

And legally contributing cause co-operating with D negligence

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9
Q

Li holding

A

Recovery in proportion of fault so pure comparative negligence

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10
Q

Li facts

A

P crosses three lanes of traffic D runs yellow light at high speed and hits P

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11
Q

Li reasoning

A

Contributory negligence would be windfall for D

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12
Q

Comparative fault rule type 1

A

Pure/Li

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13
Q

Comparative fault rule type 2

A

If P fault > D no recovery, otherwise recovery in proportion to fault

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14
Q

Comparative fault rule type 3

A

If P fault > or = D no recovery, otherwise recovery in proportion to fault

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15
Q

RST Comparative Negligence … Plaintiff negligence that is …

A

A legal cause of an indivisible injury to P reduces recovery in proportion to share of responsibility

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16
Q

RST An injury is indivisible if ..

A

P and each relevant person caused the entire injury

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17
Q

A and B collide due to A negligence, b rushed to hospital. Because of C negligence B gets infection Indivisible?

A

No, Bruises and scrapes from accident are but not infection

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18
Q

Coleman reasoning

A

Stick with contributory because legislature failure to pass so many times indicates legislative intent

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19
Q

Hypo: T and X both negligent. T sues X. T damages 10k. T 90% fault and X 10
What are damages under each P negligence category

A

Contributory: 0
Pure : 1000
50% rule = 0

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20
Q

Hypo: T and X both negligent. T sues X. T damages 10k. X countersues and X damages 1k. T 90% fault and X 10
What are damages under each P negligence category

A

Contributory= X 1000
Pure= T 1000 X 900
50%= X 900

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21
Q

Assumption of risk if P —-

A

Voluntarily consented (implied or express) to take chances harm would occur

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22
Q

At common law, AR —

A

Bars P recovery (like contributory negligence)

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23
Q

AR is … to prima facie case but.l

A

Related to.. analysis different

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24
Q

Earliest cases of AR were … but now…

A

Workplace, abolished as a defense

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25
AR is not really about.l
Reasonable person
26
AR how different from contributory negligence
AR subjective, P actions not necessary negligent, D creates risk P voluntarily accepts…. For contributory P and D both breached duty of care, P didn’t necessarily consent to risk D created
27
Murphy holding
One who takes part in sport accepts dangers inherent in it so far as they are obvious and necessary
28
Murphy reasoning 1
Everything P described was foreseen risk
29
Murphy reasoning 2
Even if D negligent, P still AR (subjective, point is autonomy not that they should’ve known)
30
Murphy reasoning 3
Could’ve foreseen fall (don’t necessarily need to foresee exact way injured)
31
Murphy reasoning 4
Volenti non fit injuria- to a willing person, injury is not done
32
Murphy reasoning 5
If choose to participate in risky activity, you assumed the risk and no breaches duty by D
33
When would getting on the Flopper be contributory negligence
Pregnant, saw someone else get injured in same way, don’t meet height etc (point to specific facts about P, why it was negligent for specifically them)
34
When is it not AR when injured on Floppr
So many injuries better to just shut down ride (conflicts with autonomy but some limit on risks we can assume) OR hidden danger
35
RST Knowledge and Appreciation of Risks..
Except when expressly agrees, P does not AR unless he knows the risk and appreciates it’s character
36
The RST knowledge of risk is a — standard…
Subjective, what particular P sees, understands and appreciates
37
RST The plaintiff’s own testimony as to what he knew understood or appreciated is..
Not necessarily conclusive. Are some risks as to which no adult will be believed if he says he did not know or understand them
38
Maddox holding
When person is a professional in professional context, can assume they had so,e awareness and knowledge about dangers common within their professional world
39
Maddox decision is in tension with..
Subjective inquiry and belief
40
Maddox negligent action
Drainage system negligently designed
41
Landings Association holding
No recovery, P either knowingly assumed risk of walking in areas with wild alligators (AR) OR failed to exercise ordinary care in doing so (contributory)
42
Landings reasoning
Knew there were wild alligators around
43
Landings Chatterjee critique
Should’ve gotten some recovery since GA comparative negligence state and secondary AR
44
Primary AR
Taking into account P conduct, D did nothing wrong
45
Examples of primary AR
Murphy, organized sports
46
If primary AR, in comparative Jdx ..
P gets no recovery
47
Secondary AR
In face of D negligence, P knowingly encountered the risk so proceeding knowing that is unreasonable and thus negligent
48
In secondary AR Jdx, P
Can still get some recovery
49
Hypo P recreational skydiver. Tired and not feeling sharp but goes anyways. Injured during bumpy but ordinary landing
Primary AR
50
P recreational skydiver, notices company not packed chute properly but jumps anyways and is injured
Secondary AR
51
For contributory negligence, looking for conduct that…
Is unreasonable and therefore wrongful
52
RST Where P voluntarily consents to take an unreasonable chance,
May obviously be both AR and CN
53
AR but not CN
Primary AR, no negligence by either party
54
CN but not AR
Negligence by both parties, no AR argument (Li)
55
AR and CN
Secondary AR, negligence by both + AR argument
56
Dalury holding
K assuming risk void for public policy
57
Dalury reasoning 1
When business offers services to the general public, policy in maintaining level of care far exceeding negligence
58
Dalury reasoning 2
Don’t want business using K allowing negligence to circumvent liability
59
Dalury factor 1
D business type suitable for public regulation
60
Dalury factor 2
D service of importance to public, maybe even necessity
61
Dalury factor 3
D performs service for anyone who seeks it
62
Dalury factor 4
D has decisive advantage in bargaining power
63
Dalury factor 5
Transaction puts people or things in control of seller at risk of carelessness by seller or it’s agents
64
Implied AR 1
P who fully understands risk of harm caused by D’s conduct who voluntarily chooses to enter or remain in area of risk
65
Implied AR 2
Under circumstances that manifest willingness to accept it, cannot recover
66
Express AR 1
P who by K or otherwise expressly agrees to accept risk of harm from D negligent or reckless conduct
67
Express AR 2
Cannot recover unless agreement invalid as contrary to public policy

Torts (13 decks)

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