defenses in negligence Flashcards
Under contributory Negligence
Any fault on the part of P - total bar to recovery
VERY HARSH RESULT
All or nothing
Burden of Proof in Comparative and Contributory Negligence Defense
conduct was unreasonable and
fell below the reasonable standard of care
contributed to own harm.
Comparative versus Contributory Negligence - Difference in analysis and result
The analysis is the same, the result is different.
Under CN if P is any part responsible - total bar to recovery.
Under Comparative Fault, P’s recovery is reduced by his culpability.
Pure Comparative Fault Result
DEFAULT RULE on MBE
P is allowed to recover even if somewhat at fault, they will be allowed to recover. Recovery is reduced by their % of fault.
Damages = $100k
P is 99% at fault
P recovers $1k
Modified Comparative Fault
P will not recover if P is as much at fault or more at fault than D.
If less at fault, P will recover less her % of culpability.
Damages = $100k
P is 40% at fault - will recover $40k
P is 51% at fault - recovers $0
Express Assumption of Risk
verbal or written relieves D of responsibility to be non-negligent.
- Clear language,
- applies only to negligence,
- not void as against public policy (necessity)
Usually in athletic activity, skydiving and the like.
Implied Assumption of Risk - Elements
- knew risk
- understood risk
- confronted voluntarily
Narrow doctrine - applies to the specific risks assumed.
professional rescuers - assumption of risk
professional rescuer injured due to inherent risk of job
can not recover in negligence when doing job.
where job is responding to people acting negligently
he assumed the risk by doing the job.
Primary Assumption of Risk
context where D has no duty to act non-negligently.
ie. playing football
Avoidable Consequences
obligation to take reasonable steps avoid increasing injuries.
Failure to wear seatbelt or seek medical attention.
recovery may be reduced as a result.
