Defenses to negligence Flashcards
Defenses to negligence
Contributory negligence
Comparative fault/negligence
Assumption of risk
Comparative fault can be:
Pure comparative negligence
Partial/modified comparative negligence
AoR can be:
Contractual
Implied
Contributory negligence
P cannot recover where contributorily negligent unless D:
Wanton and Willful
Last clear chance
Not a defense to intentional torts
Comparative fault types
P’s own negligence limits recovery by comparison to D’s:
Types
Pure comparative negligence (pure % based)
Modified comparative negligence (51% or more = no recovery) (Minority – equal fault 50/50, no recovery)
Assumption of risk
- Defense to negligence
- when P knowingly and willfully
- embraces risk
- for his own purpose.
§§ 496A, 496C
Also can be a defense to STRICT liability claim.
Express assumption - P agrees in advance
Implied assumption - Reasonable to presume P implicitly assumed risk
Most courts that use CF do not recognize AoR as a defense because reasonableness of both parties’ behavior is taken into account when determining fault;
i. If P acted unreasonably → not negligent.
ii. If P acted unreasonably → damages reduced by P’s % fault
Tort damages available, generally
Compensatory (general or special/specified) - to compensate for injury or losses
Nominal - to prove wrongful conduct despite no actual damages
Punitive - to punish for willful, malicious or fraudulent acts
Equitable - injunction or specific performance
Implied assumption of risk types
Primary implied AoR - P warned of danger but proceeds anyway with dangerous conduct. NO NEGLIGENCE by D, so no breach of duty and no AoR defense required
Secondary implied AoR - Prima facie case for negligence - Look at reasonableness of P’s behavior (burning house to save child vs. hat)
Last clear chance doctrine
Permits negligent P to recover if:
1) D was negligent
2) D had last clear chance
3) P was unable to extricate himself and
4) D knew of P’s predicament
