Defenses to Negligence Flashcards
Who has the burden of proof?
Defendant
Contributory Negligence
Common law rule that bars plt’s recovery if they acted negligently. This is preserved in only four states and ONLY works as a defense to negligence.
This is not applicable as a defense to statutes intended to protect specific classes of persons from an inability to exercise self-protective care.
Contributory negligence known to create unfair results; judicial erosion by, for example, giving dft burden on proof as to establishing contributory negligence.
Last Clear chance doctrine
If the dft had the opportunity to avoid the accident after the opportunity was no longer available to the plt, the dft will bear the cost of loss
Comparative fault
Here, the relative degree of fault determines the ability to recover. 3 kinds
Joint tortfeasors
Combine the fault of all defendants and measure this against the plaintiff’s fault
Pure Comparative Negligence
Plt can be up to 99% at fault and still permitted to recover for 1% of their damages. Here, the plt’s recovery is simply reduced by the percentage of fault attributable to plt
Modified comparative fault
49 percent rule: plt’s recovery is reduced by the percentage of fault attributable to the plt as long as the plt’s fault is less than dft’s.
If plt’s fault is equal to or greater than the dft’s, plt is barred from recovery (defense dft can invoke).
Modified form of comparative negligence
50 percent rule: plt’s recovery is reduced by the percentage of fault attributable to plt as long as plt’s fault is not greater than the fault of dft.
If plt is more at fault than dft, completely barred from recovery (defense dft can invoke).
Failure to mitigate damages result
There is no recovery for damages plaintiff could have avoided through reasonable conduct on their part after the wrong committed by the dft.
Express assumption of risk
(1) Risk that injured plaintiff suffered was within unambiguous scope of terms of the contract and
(2) The contract does not violate public interest.
It does not need to be in writing, but it is easier to prove if it is.
Implied assumption of risk
Plt must (1) have actual knowledge of the particular risk,
(2) appreciation of its magnitude, and (
3) encounter it voluntarily.
Plt can protest against dft’s conduct, but if still proceeds with it, is said to have waived objection.
Immunities
Avoids all liability under all circumstances based on the defendant’s identity or role.
ex: Federal law creating immunity for gun manufacturers and dealers for gun-related actions of others.
Different from privilege, which is context and conduct specific
