Defenses To Negligence Flashcards
What states still retain contributory negligence as a complete bar?
Alabama, North Carolina, Maryland, Virginia, D.C.
What is the pure comparative negligence rule found in New York?
Amount of damages diminished in proportion to which the plaintiff’s conduct bears against defendant’s conduct
What is the modified comparative negligence model found in Wisconsin?
A plaintiff assigned more than 50% of fault recovers nothing, anything less than 50% gets proportioned out
What is the North Dakota model of comparative negligence?
Plaintiff barred from recovery if their fault is 50/50 or greater or if his fault is as great as all other persons
What comparative negligence model does Ohio follow?
Modified comparative negligence
In what instances might a court allocate full responsibility to the defendant even with plaintiffs own fault in interests of policy and justice?
When there is lack of reciprocal risk or a power imbalance
What were the 4 traditional exceptions to the contributory negligence bar?
Rescue doctrine 2, last clear chance / discovered peril, defendant’s intentional tort, plaintiff’s illegal activity
What are the 2 exceptions to express assumption of the risk?
Unequal bargaining power or essential nature of the service
Primary implied assumption of risk?
When the defendant has no duty to guard against an inherent harm of an activity
Traditional rule for statute of limitations?
The clock begins on the date of accrual of the injury, usually the date of the injury
What is the discovery rule for statute of limitations?
A plaintiff’s cause of action accrues at the point in which he discovered or should have discovered the injury
What is tolling?
When the statute of limitations clock pauses until some impediment to suing has been resolved
When does a federal law displace state tort law?
Express or implied language in the federal law, if Congress occupies the field with heavy regulation, if the federal law conflicts with state law
