Defenses to negligence Flashcards
What are the three types of defenses to negligence?
A. Contributory negligence
B. Comparative negligence (Pure, modified less than 50, and modified equal to or less than 50)
C. Assumption of Risk (Implied + Primary)
What are the two defenses to any tort claims?
- SOL (based on absolute date)
2. Statute of Repose (based on discovery of injury)
Define contributory negligence
Plaintiff fails to exercise due care for its own safety and contributes to the negligence of defendant
General rule for contributory negligence
Plaintiff’s own negligence contributes to the defendant’s negligence which causes harm to the plaintiff.
How is the doctrine of last clear chance applied?
It is a defense raised by the P upon being found contributory negligence to still get full recovery.
Who has to burden to prove the last clear chance
Plaintiff
T/F: P can raise LCC even if not found to be contributory negligent
False
D must prove P was contributory negligent before P can raise this doctrine
T/F: D must take the last opportunity to avoid injury to the P regardless of the P’s negligence
True
5 elements for LCC
1- P’s negligence placed itself in peril and there are no means to escape
2- D knew or should have known of P’s peril
3- D had the time and means to avoid injury from occurring
4- D failed or refused to use every reasonable means to avoid injury to P
5- P is injured as a result of D’s failure to avoid injury
Define comparative negligence
Compares the D’s fault to the P’s fault and reduces the damages owed to the P by % their own fault.
General rule for Pure comparative negligence
P may recover damages reduced by their own liability even if their liability exceeds that of the D.
In a pure comparative jx, P is found to be 90% at fault and is awarded $100,000 in damages. How much is owed to P?
P can only recover 10% of the damages ($10,000)
General rule for Modified comparative negligence (not greater than; 50/50)
P may only recover damages if liability is NOT more than 50%.
P+ D may be 50% liable each but P cannot be found 51% and still recover
In a modified (not greater than) comparative jx, P is found 56% liable and D is found 44% liable. Can P still recover?
No because in this jx, P’s recovery is barred if liability is found greater than D.
General rule for modified comparative negligence (less than; 49/51)
P may only recover if liability is LESS than 50%.
If P + D is equally found to be 50% liable, P cannot recover.
if P is found 49% and D is found 50%, P may recover damages reduced by its liability.
In a modified (less than) comparative jx, P is found 30% liable and D is found 70% liable. Awarded damages for $100,000. How much can P recover?
In this jx, P may recover because liability is less than 50% but damages will be reduced by liability.
Here, P may recover $70,000
Who has the burden to prove P’s fault and degree of fault?
Defendant
T/F: The fault of multiple D’s can typically be combined
True
Assumption of Risk is similar to ______?
Consent
Define express assumption of risk
Arises when parties agree BEFOREhand, either in writing or orally, that P will relieve D of his/her legal duty owed to P.
To establish express AOR, there must be a _____ ? What is the result?
clear statement, written or oral, where P expressly relieves D of a duty towards P in advance AND P takes a chance of injury from known risk.
As a result, D is relieved of what would otherwise be a duty to P
Define implied assumption of risk
P voluntarily enters into something, knowing D will not protect him against future risk that may arise and P is barred from recovering for injuries resulting from the risk D created by satisfying all of the elements,
Elements of implied AOR
1- P actually knew of the specific risk
2- P appreciated the magnitude of the risk
3- P knowingly + voluntarily placed himself in a position to be injured by taking the risk
Under implied AOR, D must prove what ?
The P knowingly and voluntarily chose to encounter the risk
